Review the Freedom of Information and Protection of Privacy Act — Issue No. 5

SPECIAL COMMITTEE TO REVIEW THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT

Present: Don McRae, MLA (Chair); Doug Routley, MLA (Deputy Chair); Kathy Corrigan, MLA; David Eby, MLA; Sam Sullivan, MLA; Jackie Tegart, MLA

3. The following witnesses appeared before the Committee and answered questions regarding the Freedom of Information and Protection of Privacy Act:

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

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
REVIEW THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT


CONTENTS
Page
Presentations	27
V. Gogolek
M. Karanicolas
J. Crasta
S. Bohus
G. Watson

D. McRae (Chair): Good afternoon, everyone. My name is Don McRae. I’m the member for Comox Valley and the Chair of this committee, the Special Committee to Review the Freedom of Information and Protection of Privacy Act.

B.C.’s Freedom of Information and Protection of Privacy Act requires that a statutory review be conducted every six years by a special committee of the Legislative Assembly. This is the fourth statutory review of FIPPA. This committee must submit a report to the Legislative Assembly by May 27, 2016, and may make recommendations to amend FIPPA.

FIPPA is an access and privacy law that applies to the public sector. It gives access rights to British Columbians by requiring public bodies to disclose information in response to access requests and protects the privacy of individuals through limitations on how public bodies collect, use and disclose personal information. It also requires organizations to protect personal information by making reasonable security arrangements against the risks of a privacy breach.

Today’s public hearing is the third meeting in which the committee has received submissions. In July, we heard presentations from the Ministry of Technology, Innovation and Citizens’ Services and from the Information and Privacy Commissioner for British Columbia.

Additional public hearings are currently scheduled for November 9 and November 18. Written submissions will be accepted by the committee until Friday, January 29, 2016. To make submissions or to learn more about the work of the committee, please visit our website, which is www.leg.bc.ca/cmt/foi.

Today we have allocated 20 minutes for presentations, to be followed by an additional ten minutes for questions. The proceedings will be recorded by Hansard Services, and a transcript of the entire meeting will be made available on our website.

Now I’ll ask committee members to introduce themselves. I’ll ask the committee Deputy Chair, to my left, to begin and work our way in that direction around to this side.

D. Routley (Deputy Chair): My name is Doug Routley. I am the MLA for Nanaimo–North Cowichan and the official opposition’s spokesperson for Citizens’ Services, which includes the Freedom of Information and Privacy Protection Act.

V. Gogolek: Thanks for allowing the B.C. Freedom of Information and Privacy Association to present to you today on this very important issue and this very important piece of legislation, which is actually quasi-constitutional in nature. I believe the committee has an electronic version and you have our hard copies of the submission, which I will not be able to go through in detail. I will try and touch on some of the highlights as quickly as I can to leave as much time as possible for your questions.

Almost a quarter century ago, this act was passed unanimously by the Legislature. Over the intervening period, the need for updates and improvements has become apparent. I’d just like to touch on some of those today, in both the information and privacy areas.

The first thing I’d like to talk about is the duty to document. There can be no public access to records if records are not created. Unfortunately, as noted in several recent reports from the Office of the Information and Privacy Commissioner, there has been an increasing trend toward oral government. An oral culture is growing in government, which is in complete opposition to FIPPA’s legislated purpose of making public bodies more open and accountable. It’s a not a new phenomenon, but it has been increasing.

In 2013, we filed a complaint with the commissioner about the rapidly increasing number of responses to FOI requests coming back with: “No responsive records.” The commissioner, in her report, not only confirmed our findings, our research, but found that the situation had actually been getting worse in the intervening months between our complaint and her report.

One of the problems that she pointed to is the overuse of the concept of a transitory record, and I’ll be dealing with this in more detail later. This is part of the growth of the oral culture in government.

In response to this, the commissioner recommended the creation of a legislative duty to document, to ensure that records are in fact created. The government’s response was: “Well, let’s wait for the committee to deal with this.” Well, you’re the committee, and I hope that you will deal with this, because when government officials avoid scrutiny by failing to create records, it’s a threat not only to access but also to the archival and historical interests of the province.

Left without records of their predecessors’ thoughts,
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decisions and precedents, other officials are deprived of the benefit of their wisdom and their folly. History is impoverished, and our collective wisdom is diminished. As the saying goes, those who fail to learn the lessons of history are doomed to repeat them. If there is no history, it will be impossible to learn any lessons at all, and I don’t think that’s what we want.

In addition to a duty to document, there should be a specific duty to retain documents subject to FOI requests, and there should be penalties for intentional destruction or alteration of documents. Seven provinces and territories, plus the Canadian federal government, have introduced into their laws penalties for document tampering and obstruction.

FIPPA has a legislative duty to assist requestors in section 6. Section 74 of the act states that a person who wilfully obstructs “the commissioner or another person in the performance of the duties, powers or functions of the commissioner or other person under this Act” faces a fine of up to $5,000. Section 74 may be sufficient to deal with cases where there’s an actual request to a public body or where the commissioner is actually undertaking an investigation, but it’s not clear, and we have a great deal of doubt as to whether it can be stretched to cover situations where documents are being destroyed or altered without a request. So we recommend that there be legislative action to deal with this shortcoming.

In terms of transitory records, this concept is something that Commissioner Denham pointed out — that the government is not following what the CIO and what the government manual states what is actually a transitory record.

The office of the chief information officer, the central office responsible for information management in government, offers guidance stating that “Transitory records are records of temporary usefulness that are needed only for a limited period of time in order to complete a routine action or to prepare” an ongoing record.

The Ministry of Citizens’ Services provides a similar definition in its approved government-wide records schedule on transitory records. “The OCIO makes it clear that not all drafts or working papers are transitory records. The OCIO also states that some, but not all, e-mail records are transitory.”

Now, the definition has been clearly laid out, but what we’re starting to see is that the word “transitory” is being used as a magic, “let’s make the records disappear” concept. You’ll find a link in our written submission to an FOI request, which is up on the government’s open government website, where there’s a great, long series of e-mails dealing with the work of government. One of the senior bureaucrats sends an e-mail back saying: “Please delete all drafts of the materials, and e-mail correspondence should be treated as transitory.”

Well, records are either transitory or they’re not. The office of the chief information officer — the government has definitions of what this is. You don’t just get to say: “Let’s treat it as transitory.”

This is probably the prime example of why we need sanctions, because this is just getting out of control. I don’t think this is a matter for more training. More training may be required — people may have to be reminded — but some sort of sanction is going to be needed to stop this.

Something else we’re looking for, related to this, is in terms of penalties for egregious actions by a public body, where they are essentially blocking access.

Our written submission has, again, linked to the commissioner’s website and one of her mediation reports, where a public body — not the government of British Columbia, apparently — actually took six months in a mediation process in the commissioner’s office, burning up the commissioner’s time, budget, resources and the requester’s time and resources, raising a succession of increasingly less-likely exceptions to why they should not have to release this.

To us, this is an example of why some sort of sanction is needed for this — not just for destruction but for conduct that becomes, shall we say, the equivalent of a frivolous and vexatious requester. We have a sanction for people who waste government resources. There are possibilities. There is section 43 of the act, which allows public bodies and the commissioner to restrict the rights of those people.

At this point I think it’s necessary that we have some equivalent for public bodies where, in a clearly defined case, they have exceeded what anybody would think is the normal balance.

Unfortunately, what we’ve seen from the government recently is a move away from bringing in direct legislative responsibility. Bill 5, the Information Management Act, which was passed earlier this spring — a piece of legislation which has a number of very good aspects to it, which works toward the digitization of government records, making them more widely available — replaced the Depression-era Document Disposal Act.

Unfortunately, in doing that, what the government did was they also got rid of the possibility of there being a charge under the Offence Act. Nobody had ever been charged under the Document Disposal Act, but it was still there as a potential sanction of the kind of thing you might want to think about a bit.

Something else we raised last time, in 2010, before your predecessors, is the matter of education-body subsidiaries, university subsidiaries that are not covered under the courts’ interpretation of the current wording. Municipal subsidiaries are covered under the act. There’s no reason why the same wording can’t be used. The commissioner has suggested as much. We ask that you repeat your recommendation.
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In terms of policy advice, you may be aware that, since the committee last looked at the act, there has been a major decision from the Supreme Court of Canada in a case called John Doe, which has resulted in an expansion of what is covered under policy advice. And even in the months since that decision was handed down in the spring, we have seen public bodies trying to expand the scope of policy advice. In one case which is referred to in there, a health body tries to say that summaries of audits are policy advice.

Audits are things that the commissioner has said should be just proactively released, never mind not released subject to FOI. So we draw that to your attention.

In terms of legal privilege, we’ve noticed some problems there with legal counsel being engaged to do the kind of work that could be done by anybody. If it was done by somebody other than a lawyer, there would be no question that it would be subject to release under the act. In this case, what we’ve seen is more and more lawyers being brought in for this. The cases and the orders that the commissioner has made are in our written submission. I refer you to those.

The commissioner has also made a very important decision in terms of a public-interest release without FOI requests. We’ve been very active, along with the environmental law clinic at the University of Victoria. We were the complainants in the first case and the second case, and we are actually working with the environmental law clinic to get you a detailed written submission, which we will have for you before the close of written submissions.

In terms of privacy protection, I’d just like to touch quickly on a couple of issues. One is the question of domestic data storage, as very recently we saw that the federal government has released copies or summaries of the Trans-Pacific Partnership, which appears to have in it a ban on legislative domestic-based data storage requirements. That’s what we have in our law, in section 30.1.

There may be a reservation in there. We don’t know. The federal government has not come forward and said: “We do have a reservation for this.” A reservation is when a government negotiates a trade treaty and there’s an appendix that says: “Oh, by the way, the treaty doesn’t apply to the following laws.”

The general provisions that were released by the federal government indicate that FIPPA would be covered and that our domestic data storage requirements would be contrary to the treaty. So we urge you not to change those. They can’t do it by enacting a treaty. They can’t repeal FIPPA, and we urge you to continue domestic data storage protection. In fact, we’d very much like you to call some witnesses, if that is your will, to get to the bottom of what is actually going on here, because we’ve been trying to get information through FOI, and we just haven’t been able to. So we’d make that request.

We also have some detailed questions, which we deal with in our written submissions, about tokenization, which is something related and which is something the B.C. government has started doing, where they contract-released in 2013, I believe, with a company called Salesforce.com in San Francisco. The commissioner has issued some public guidance on tokenization. We have a number of questions which are set out in our written submissions.

D. McRae (Chair): Well, you had four more minutes for your presentation, but by all means, if you’re finished in this formal part of the presentation, we can open it up to questions. I see, obviously, that some of my colleagues have questions.

K. Corrigan: Thank you for the presentation on behalf of your organization, which does great work on behalf of the public interest in British Columbia. So thank you so much for that.

Just a note. We did not get a copy of your submission. I’ve made a request for it this week and was told by the office that we didn’t have a copy of this submission prior to being here. I didn’t, and I phoned the office yesterday.

K. Corrigan: Oh, okay. That’s good. I have some questions that may be covered in it, but I want to make sure that it’s understood that if it’s covered in here, I may not have gotten it.

The first thing I wanted to ask you…. Maybe I’ll just start with where you were towards the end there. With regard to domestic data storage, you said that it’s your understanding of the law that when you have a trade agreement, that that can’t force a government to repeal. But my understanding of trade agreements was that if there is a law that is inconsistent with the trade agreement, there are still obligations. Whether or not the law is repealed, the country has undertaken obligations which would, presumably, include an obligation to make sure that the law is in line.

Maybe you could just explain that a little more — and also who, you would suggest, would be the appropriate witnesses if we were going to request witnesses to address this issue. That’s my first question.

V. Gogolek: You’re absolutely right. Although a federal treaty or the enacting legislation at the federal level would not repeal FIPPA or the parts of FIPPA, what would happen is that the obligations on the party to the treaty, which is the federal government, the government of Canada, would mean that if a company based in one of the other signatories — in Vietnam or the United States or Australia — said, “We want to enter into a con-
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tract with Trinity Western University to store their data,” presumably, Trinity Western would say: “Well, will you be storing it in here? Here are the requirements under our laws….”

They’ll say, “No, we don’t have to, because we’re a TPP partner. We’re going to store it in Australia,” at which point, Trinity Western would, presumably, say: “Well, that’s not going to make it. You’re not getting the contract.” Whatever the value of that contract is, the Australian provider would then sue the federal government.

This has happened in cases like the Bowater pulp and paper water rights case in Newfoundland. When they closed the plant, the government of Newfoundland took their water rights back. Bowater sued the federal government for $500 million, and the federal government settled for $130 million.

There could be a lot of money at stake for Canadian taxpayers, not just British Columbia taxpayers or public bodies in B.C. So that’s the way I would see that coming out. I would suggest that you talk to somebody who…. There are a number of people, trade lawyers, well-known trade lawyers…. I don’t know that many of them, locally. Barry Appleton or Mr. Herman, in Toronto, I believe, are two well-known trade lawyers. I could come up with some names.

D. McRae (Chair): Actually, could I pass it on to Doug, and then we’ll come back to make sure that we do have the ten-minute time. I’m sure we’ll have time to get to you.

D. Routley (Deputy Chair): The duty to document. Since we’re looking at advancing the act and the act, when it was introduced, was considered to be one of the most progressive acts of its kind in North America, what would a duty to document here in B.C. look like if we were to aspire to the same kind of lead?

V. Gogolek: Well, we haven’t undertaken any actual drafting in our proposal. There are other countries in the world…. I believe you’ll be hearing from the Centre for Law and Democracy, which does a lot of international comparative work. I believe they would be able to point you to other jurisdictions that have a duty to document. It would, essentially, be requiring documentation that government decision-making shall be documented and prime records kept.

Of course, there are other sanctions that can be done along the way, in addition to a general duty to document in the law. There can, of course, be administrative procedures requiring that things be properly documented and sanctions for public servants who do not carry out their duty. One of the things that we have, of course, is public servants taking an oath in terms of non-disclosure. Well, part of the oath could be modified to include this, that you and I shall keep proper records of all government decision-making.

K. Corrigan: Actually, it’s partially been covered. That other question that I had was this increase in the oral culture of government. I guess a similar question — maybe you’ve covered it — is: what concrete things could a committee do? You’ve alluded to some of them. Is there anything in your written presentation about this that we could take a look at?

K. Corrigan: What kind of recommendations…? I mean, it has to be something concrete. I think it’s too wide to say: “The committee makes a recommendation that government is failing in its duty to document, we have too much of an oral culture in government, and therefore, we need to address it.” I guess we could make a general recommendation like that, but it’s better to have the specifics.

V. Gogolek: We have not provided you with specific language. We’d be happy to assist or to come up with something. If the committee would like us to assist, we’d be happy to take a look at it.

There are international examples where this has been done. It’s not any kind of insurmountable task, and there are a number of different approaches that can be taken in terms of gradations from a requirement in the act. I think it is necessary that there be a general requirement in the act that decision-making of government shall be properly documented, making that real — the way the act currently is done, with the big manual that government has in terms of how you interpret what is a transitory record or what is policy advice.

Government is actually pretty flexible. They find ways of making this stuff work for real.

In terms of blue-skying, if you’re a ministry official, a civil servant or such, and you want to make sure that individuals are thinking, perhaps, outside the box, being creative but maybe not being practical in terms of what the suggestions are…. You want to make sure people are
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willing to explore opportunities but, at the same time, not cross that line. Is it a decision or is it a…? It might be advice.

Do you find that there is a certain sweet spot that legislation has to get to, to allow civil servants to be in that blue-sky world but not fearful of being accused of setting policy yet? Does that make sense to you?

V. Gogolek: I think it’s part of the policy process. Ideas are going to be discussed. Approaches are going to be taken. For all kinds of reasons, certain avenues will be followed partway or not followed at all. At each point there should be some adequate level of recordkeeping that shows who decided, what was decided and why it was decided.

I think it’s at each of those points, not just the final “We are doing this. The plant will be located here. It will cost this much money.” “Well, how did you get there?” It’s all the other stuff. “Why didn’t you look at this location?”

“Well, it’s right next to an environmentally sensitive area” or “We just don’t like it” or “Transportation is inadequate” — whatever the reasons are. That way, when we go back and look at it ten years from now, with perfect 20-20 hindsight, we’re able to see…. “Why didn’t they do it that way?” “Well, because this was the information they had. This is how they came to that decision. They could have done better. They could have done worse.”

D. McRae (Chair): That could also lead to almost a journal entry to a non-decision. “This was suggested by civil servant X, but it was not followed up, and it is a dead issue.”

V. Gogolek: You’ll see that. If you take a look at the open government FOI-released records, you’ll see this. This is the way decision-making works. You have various proposals. They get narrowed down. Sometimes things get narrowed down too early.

That’s the thing in terms of not just those of us outside government trying to exercise our democratic rights and figure out what’s going on but also inside government so that five or ten years from now you’re not going to have to go to the retired deputy’s home in Oak Bay and get somebody off the porch and say, “Why did you put the plant there?” and hope they remember.

D. McRae (Chair): According to my able clock here, we have about four minutes to go. So there is still time for questions.

You know, of course, Mr. Chair, that I will go on forever. I always have lots of questions.

The issue of legal privilege, of counsel being engaged to purportedly avoid disclosure of documents or information.

In terms of how you could address that — because you can’t stop people from hiring lawyers — would it be possible, and maybe you deal with this in your submission, to in some way limit through the act, or maybe another mechanism, what can then be considered privilege? I don’t know if this has been done anywhere in the law — to say, “Look, privilege only applies to legal advice, for example, as opposed to general advice,” and so on. Have you ever thought about that?

V. Gogolek: Well, there have been decisions. There was a decision involving the Vancouver school board, which we cite in our written submission. A lawyer was hired to provide a report, and the school board said: “You can’t have that. That’s privileged. A lawyer wrote it.” And the commissioner said: “Well, actually, anybody could have written this. They happened to be a lawyer. Privilege doesn’t apply.” And they set out a four-part test for what is privilege.

But what we’ve found is that work is being done that could be done by anybody. And retainer letters are being done with “retained to do a report on this incident” or this policy or whatever, and the last thing is: “and to provide us with legal advice.” Suddenly that seems to be the “get out of jail free” card. As soon as you put that in the retainer letter, then it’s presumed to be privileged, and then it’s very hard to get.

Of course, I want to emphasize that we don’t want to get rid of legal privilege here. We want to see it applied properly to situations where the substance of what is actually being done here is either advice for litigation or legal advice in the broader sense. It will require some craftsmanship, but we wanted to bring that to your attention — that this is something that we’re seeing.

We don’t want to take crusts out of the mouths of the children of lawyers in this province. But at the same time, we don’t think that they should be put in a — for lack of a better, pardon the pun — privileged position to do work that would otherwise be generally available if it was done by some other type of consultant or an accountant or somebody else. So we think this is something that you need to look at.

D. McRae (Chair): Thank you very much, Mr. Gogolek. And thank you very much to the B.C. Freedom of Information and Privacy Association. You used your 30 minutes well. I appreciate your presentation. We look forward to not only having the report today, but I gather there’s more information coming later on.

V. Gogolek: Yes, there will be. It’s being prepared right now by the environmental law clinic at the University of
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Victoria. It deals with section 25 and proactive release in the public interest.

D. McRae (Chair): Perfect. You’re fully welcome to stay for the other presentations. The next presentation will be by the Centre for Law and Democracy, which you referenced earlier, and they are our first teleconference presentation.

So joining us on the centre floor here, on the speaker, is Michael Karanicolas. He’s joining us from eastern Canada, I believe.

D. McRae (Chair): Michael, you are joined by six of us committee members and staff support and members of the audience. According to my clock, though, you’re on a different time zone. It is 1:05, but we’ll say it’s five past the hour. We’re hoping that we’ll go for 20 minutes or so on the presentation and then have about ten minutes for questions. Is that okay with you?

M. Karanicolas: Yup, that’s fine. What I thought is that I’d basically just talk a little bit, basically to take the note that we’ve already provided as read and sort of expand on that a little bit. I’m not sure if I’ll need the full 20 minutes for that. Then we can have a back-and-forth for whatever time is remaining. Is that all right?

D. McRae (Chair): By all means. When you get down to the last minute or so, I will interrupt and just…. If we do go, in the presentation side of it, towards the 20 minutes, I’ll let you know when you have a minute or two to wrap up your presentation so we do have time for questions. Michael, I turn the floor over to you.

M. Karanicolas: All right. Thanks very much. I’ll just start by telling you a little bit about who we are.

The Centre for Law and Democracy is an international NGO which works to advocate foundational rights for democracy. We have a strong focus on the right to information, and we’re also highly legally focused. So law reform is generally where we direct our energies.

Most of our work is international, and that includes working to pass right-to-information laws around the world, as well as helping to implement right-to-information laws both at the supply side, in terms of helping governments’ information commissioners, and at the demand side to encourage requesters.

We also work to reform and improve existing laws. In that capacity, I’ve contributed to right-to-information reform consultations around the world, most recently in the Maldives and in Afghanistan. Here in Canada, I’ve participated in reform processes in Quebec and Newfoundland, as well as at the federal level, to consider changes to the Access to Information Act. In total, I’ve reviewed close to 100 access-to-information or right-to-information laws in my time working on this issue.

With that little introduction, I can say that the situation in B.C. is not bad. Particularly, I think that…. I caught the tail end of the last presentation. It is good that there’s a strong NGO on the ground in B.C., which puts it in a better position than most Canadian provinces, in that they have BCFIPA there, working on the issue. I’ve looked through a draft of BCFIPA’s submission, which we generally agree with, and I’m hoping that in speaking to you, I can provide a bit more of an international perspective, which I think is particularly valuable on this issue.

As a broad rule, Canadian right-to-information laws tend to be quite weak, across the board. Now, there are exceptions to this. Newfoundland just passed some very strong improvements to their right-to-information law, which is now the best in the country, in our estimation. We’re hoping that the committee will consider thinking bigger than the Canadian context and to recommended changes that will create a law that will stand up not just against Canadian standards but against international standards.

We already have provided the committee with a short note and will sort of take the information in there as read. Normally, we would provide something a little bit longer than that. We’re stretched a bit thin, at the moment, with our engagements on the federal election as well as some of the international issues that we’re engaging on at the same time. I hope, in this presentation, to elaborate on a few areas and then just sort of discuss any questions that you have.

In terms of expanding the scope of the Access to Information Act, I mentioned in the written submission that the general rule in terms of the international standard is that the right to information should apply to any organization which either receives public funding or performs a public function. I jmention that again because I think it does dovetail a little bit with something that BCFIPA raised regarding subsidiary companies of school boards, and it is important to ensure that governments don’t have the opportunity to contract out of transparency obligations, particularly in light of increasing moves towards privatization across the country.

I’ll speak briefly on requesting procedures. I already mentioned in our note that we would recommend shortening the timeline for response, as well as scrapping the processing fees. Our assessment was made after we checked some of the annual reports, which suggested that these fees were very rarely imposed. I’ve spoken to people that have said that they actually can be a strong, significant impediment to access.

Regardless of whether they’re imposed or not, I do think that there’s a strong case for scrapping them. If they
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are an impediment to access, then certainly, that needs to be taken away to encourage the use of the act. Even if they’re not imposed, I think it does beg the question of why you need them at all, if they’re only being applied in 1 or 2 percent of the cases. That was specifically mentioned — charges in there for scanned documents, which seem very unusual to me and which I can’t recall seeing in other legislation.

The one thing that I would add to the question of timeline is that I’d like to express support which is something that I think BCFIPA would have brought up, which is the 20-day period for transferring misdirected requests in section 11. We would agree that that’s longer than is necessary. We think that that 30-day time limit should start to run as soon as the request is filed and that that should be the time limit. The clock should start running then, and that’s what public bodies should have to adhere to.

In terms of exceptions, obviously, we mentioned intergovernmental relations within our submission, as well as sections 12 and 13 for cabinet and local body confidences.

To clarify what I meant by that, the issue that we have with both of those is that they’re class exclusions. Generally speaking, when we look at crafting an exception to an access-to-information law, we hope that it will be crafted as narrowly as possible, as opposed to excluding an entire category of information — excluding information just because it falls in a particular category.

To expand out the standards that we have in the notes already, I will note that India has ruled that disclosure should happen as soon as the decision has been made. So if you’re talking about a deliberative process and documents are feeding into that, once that decision has been arrived at, the documents should be disclosed. Just to expand out on the issue of the deliberative exception, generally speaking, in the United States, public bodies looking to invoke this exception are expected to identify a specific decision-making process in order to justify their refusal.

I can expand out a little bit on the subject of legal privilege. I just caught the tail end of that discussion. On the subject of section 14, we recognize that solicitor-client privilege is a vital ingredient for enabling effective representation of clients in the private sector, but a very different dynamic exists in the public sector.

Solicitor-client confidentiality generally exists, first, to allow lawyers to plan their strategies for upcoming legal processes — something that’s litigation privileged — and, secondly, to promote candour between lawyers and their clients. We would suggest that the first of these is clearly necessary for government lawyers, who have the same concerns about pending litigation as lawyers in the private sector. However, the second of these, for the free and frank flow of information, is not as necessary in the public sector in a specific legal context.

When public officials deliberate with government lawyers, they’re discussing matters of public affairs, not potentially sensitive personal or criminal matters. We would recommend adapting the rules to recognize the fact that government counsel play a range of roles in policy development — planning and administration, which are functionally similar to those of their non–legally trained colleagues.

The general recommendation that we make on this is to limit solicitor-client privilege to litigation privilege rather than anything that comes from a lawyer. Now, we are aware that there has been some legislation clarifying this a bit, specifically the case of R. v. Campbell, but our experience is that it’s better to clarify this in the law so that there is less uncertainty.

In reference to the override clauses in section 79, we have been informed that there are 43 laws on the books which override FIPPA. We would think that this is obviously too many and that this sort of situation creates confusion about what should be exempted. It’s particularly problematic in the sense that it raises the question of what these other laws have and why the information there cannot be adequately covered under existing access-to-information exceptions. We would recommend that these other laws be reviewed, and they should….

If the exception is unnecessary, if the information there is already covered by an exception under B.C.’s Freedom of Information Act, then the override should be deleted. If it’s not, if you actually do need an additional exemption, they should make sure that that exemption has a harm test as well as a public interest override.

Finally, I’ll say that we support the idea of adding a penalty for obstructing the right to information. Canada’s Access to Information Act includes fines of up to $10,000 and jail terms of up to two years for trying to deny the right to information or destroying, falsifying or concealing records or counselling another to do so. A lot of jurisdictions have these in place.

Generally speaking, they’re almost never used, but we do find that they’re useful as a deterrent. So we would support including them. If something is going to be included, generally speaking, jail terms usually aren’t necessary. I have personally never heard of a jail term being applied anywhere on that, even though many laws have them. However, even the prospect of a fine and the sanction that’s in the law can be useful as a sort of a psychological boost to the act.

Finally, I will mention that we also support the notion that there should be whistle-blower protection included within B.C.’s legislative framework. Whether that’s in the access-to-information law or is a separate law is another issue, but certainly, that’s an important aspect of a strong right to information. We would support that.

I think that’s all of the elaboration that I was hoping to do on the note that we already provided. With that being said, I’d be happy to take any questions that have arisen either from the note or from my comments.
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D. McRae (Chair): Perfect. Thank you very much. According to my clock, if we stick to schedule, you have about 16 minutes for questions. I see that David Eby has a question already.

D. Eby: Mr. Karanicolas, you mentioned approximately 40 pieces of legislation that have exemptions, additional to the act itself. I’m wondering whether…. You phrased it as you were advised that there were more than 40. I’m wondering whether you had the list of these acts or these provisions that you could provide to the committee so that we could review those, pursuant to your recommendations here today.

M. Karanicolas: No, I don’t know. I have that from BCFIPA. That’s something that I found — a draft of their submission. It’s common across the country for there to be a lot of those paramountcy clauses. They are always problematic, but I don’t have a specific list.

D. McRae (Chair): Other questions from the committee? Kathy Corrigan, the floor is yours.

K. Corrigan: I’m just trying to figure out what I should ask about. Actually, maybe what I’ll do is open it up back to you, Michael, because we do have a couple of minutes.

I read your submission. Is there any other area that you haven’t had a chance to talk about or one of the areas you haven’t talked about that you’d like to expand on a bit more or an area that you think is a real priority, the highest priority, that this committee should take a look at?

M. Karanicolas: Certainly, one of the areas that I mentioned in my submission that I only sort of spoke about in brief just now was about cabinet and local body confidences, partly because this is one of the most commonly cited and commonly abused areas of the act. Also, I think this is an area where there really needs to be a lot more clarity around how the exception in that act can best suit its intent.

When we talk about the idea that every exemption to the right to information should have a harm test included within it, what we mean to say is that it’s perfectly legitimate to exempt information if that information would be harmful to the deliberative process. The purpose of those exceptions is to give public officials the appropriate space to engage in the deliberative process.

We recognize that requires a measure of secrecy as the deliberative process is ongoing. However, if the exemption isn’t subject to that harm test, it can easily be expanded out to include documents whose disclosure wouldn’t cause any demonstrable harm or wouldn’t lead to any real issues with the process. So we would want to see sections 12 and 13 defined a little more carefully so that only information which would cause harm to the deliberative process would be subject to an exception.

It’s a little bit difficult to isolate one specific one. That would probably be a major one that I wanted to examine more closely — issues of timelines, issues of fees and other ways, and expanding the scope as well.

K. Corrigan: Two things. First of all, would you have sample language or language that could be applied to our present sections 12 and 13 — clauses that could be inserted in the legislation or rewritten that you would suggest? That’s my first question.

The second one. I know that in your submission, you make references to some good practices, from your perspective, of other countries. Is there one particular model or law or legislative scheme that you would see as being the Cadillac of freedom-of-information and protection-of-privacy legislation somewhere in the world that we should take a look at?

M. Karanicolas: I’ll start with your second one first. The best access-to-information laws in the world — a lot of them originate in the Balkans. We have a methodology for assessing the right to information, and we’ve currently applied it to, I think, 102 of the 105 right-to-information laws that are in force around the world to create sort of a ranking system.

Basically, it’s a series of indicators that are hallmarks of strong right-to-information law, so we score every law in the world for whether they have these. The best law in the world is from Serbia, second is a tie between Slovenia and India, and then after that we have Croatia. Generally speaking, there are a lot of very strong laws in the Balkans. Serbia, Slovenia, India and Croatia all have very strong right-to-information laws.

One of the things that you notice about the strongest right-to-information laws in the world is that they tend to come from the developing world and particularly from emerging democracies. One of the reasons for that is because these are countries that have passed right-to-information laws much more recently.

Also, in our experience, countries that have had a recent experience with dictatorship tend to have a much stronger and more personal understanding about why government secrecy is so dangerous and why you need to have transparency in government.

In terms of the Cadillac or the gold standard, the best national-level laws that we would look to are Serbia, Slovenia, India and Croatia. However, beyond that, I could recommend international model laws, which are better than any of those in force.

The Organization of American States has a model law on access to information, as does the African Commission on Human and Peoples Rights. Article 19,
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which is an NGO based in the U.K., has their own draft model law. I’d be very happy to forward these model laws along, as well as any other legislation that might be interesting, if you are interested in reviewing.

In terms of the deliberative exception, I don’t have the…. I’m going to cite Japan’s freedom-of-information law, because I happen to have it in front of me, as a better example.

India is not a good example, because they don’t really have a specific…. Their exception doesn’t work in that same way. Serbia, I think, is also quite strong, although I don’t have that in front of me at the moment.

The access-to-information law says: “Information concerning deliberations, examinations or consultations internal to or between either organs of the State…or local public entities…that, if made public, would risk unjustly harming the frank exchange of opinions or the neutrality of decision making….”

That, I would consider, is a good way to express the harm test that I was discussing before.

I don’t recommend that you copy that provision in its entirety, because a little farther on they talk about not releasing information that would cause confusion, and we absolutely don’t endorse that. I’m going to sort of limit my recommendation to that first half of the deliberative body’s exception from Japan in terms phrasing.

I know that Nicaragua has a good harm-tested exception. Basically, the way that Nicaragua does it is they have their different exceptions there for law enforcement, for information that would reveal deliberations of government, for information that would harm the economy. They basically have the list of exceptions there, and then, at the very end, they say: “These exceptions only apply insofar as they would cause harm to the protected interests.”

That’s another approach which I think is novel and is an interesting way to phrase it.

D. Routley (Deputy Chair): Thank you, Mr. Karanicolas. The Newspapers Canada report today gave B.C. an F grade — down from D in 2014 — for speed of disclosure, and in the past, they’ve referred to the move from 30 calendar days for release to 30 working days, which essentially creates an extra week of time to every request.

D. Routley (Deputy Chair): Yes, I guess two weeks. Forty days it winds up being, ten days on average.

You recommended getting rid of the 20 days for transfer, and I assume that’s based on centralized FOI management — that there should be no requirement for transfer between ministries because the centralized FOI should be directing the request to the right ministry.

On the issue of calendar days, the reason that is given for supporting the move to 30 working days is that during holiday seasons, the time allowed is so narrow. Have you given any consideration to reducing the number of working days to accommodate the legitimacy of the argument that holiday seasons interfere? What do you think the effect would be to reduce the time limit to 25 working days?

M. Karanicolas: Again, I was just about to say…. You just said 25 working days. I would just suggest that it should be 20 working days, and that seems to deal with that adequately.

Across the country, we see, generally speaking, the application of either one month or 20 working days or 30 calendar days. And those, as far as I can tell…. I mean, I would consider those interchangeable. If you have a concern during the holiday season that it will make it too difficult, then certainly a switch to 20 working days would be fine. I don’t know why you would switch to 25 working days rather than 30 calendar days.

I mean, to me, I guess there are 22 working days in a month. I guess it depends on the month, but generally speaking, we would consider the equivalent to be 20 working days, and that would be what our recommendation is. I’m not sure why longer than that is necessary.

Again, there are access-to-information systems around the world that are able to operate and deliver the information within 30 calendar days. India is one of the ones that I cite in our submission. They say 30 calendar days, and that’s it. There are no extensions to that. And if you want to talk about….

The Indian bureaucracy functions certainly without the level of computerization and certainly without the level of technology and administrative support that the Canadian bureaucracy works with. If they can deliver information in 30 calendar days, certainly it’s difficult to believe why it wouldn’t be possible among public bodies here.

D. McRae (Chair): Chair McRae here. You sort of alluded to the question I was going to ask. You mentioned that India, Serbia and Mexico are leaders in this legislation, but I was wondering about the application of legislation — whether they are able to, basically, come through or enforce or penalize poor action. And as well, if there are any highlights about what Newfoundland has done as it has leaped forward in its RTI, or right-to-information, legislation as that goes forward.

M. Karanicolas: Absolutely. India is an area where I have a little more experience than in Serbia and Slovenia. In India, the application is actually quite good, and the implementation is quite strong.

One of the reasons for that is because they have an extremely empowered information commission over there, the Central Information Commission, which has a lot of proactive power to conduct investigations.
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They have the penalty to levy fines. One of the ways that it works over there is that if they find a public body is not compliant, then the Central Information Commission will issue a daily fine of what works out to, I think, about $10 or $15, which obviously is more money when you consider the exchange rate. That is applied every day that the public body is not in compliance.

That creates a real impetus when the information commissioner over there tells a public body to improve its recordkeeping, to improve its information management, to provide particular information. That provides a really strong way to keep public bodies in line.

I’m not necessarily suggesting that those sorts of things start to be applied in B.C., but it is worth noting that yes, implementation is actually quite strong in India. Serbia and Slovenia I don’t have direct experience with, but our colleagues that have worked in those countries in developing the national rating of right-to-information laws have told us that the implementation matches it. Mexico is certainly a leader at the federal government level in implementing strong right-to-information legislation.

D. McRae (Chair): Just the response to Newfoundland’s new legislation and what they’ve done that’s caused them to leap forward.

M. Karanicolas: There were a lot of improvements that were made in the law. I haven’t had time to go point by point and compare it to the B.C. law. I did an analysis of Newfoundland quite awhile back. I’ve done an analysis of B.C.’s law as well. It’s a little bit difficult to see which areas of it line up. I do know — just to go back to the timeline — that in Newfoundland, their rules around timelines are, I believe, set at 50 calendar days. I think I might need to follow up in writing on this, if you’re all right with that.

D. McRae (Chair): That’s quite okay, and it also gives me time to leave one more question for David Eby, as we’re down to our last 2½ minutes.

D. Eby: I was wondering about your recommendation specifically in relation to employee time spent on freedom-of-information requests. You didn’t recommend, for example, that there be an expedited fee review or that the categories where fees could be waived would be expanded or altered.

What you’re suggesting here is that there be absolutely no ability of a public authority to charge the employee time to search records. Can you explain why you chose this approach rather than some other sort of recommendation? It seems to me that the discipline of costs is sometimes necessary given the huge amount of information held by government, the cost of recovering it and the relevant public interests. There may be none; it may be exclusively a commercial interest in the records that are being searched, for example.

Why would you say that public authorities should never be able to charge for employee time?

M. Karanicolas: Well, it’s because we consider that to be part of their core mandate. The right to information is fundamental to a democratic process. The ability to access information is fundamental to having the proper accountability. There should be budgeting within these public bodies to respond to access-to-information requests.

Again, we can point to examples all over the world. We point to them in our submission of developing countries, Third World countries, that respond to access-to-information requests and have the capacity to do that even with their much more limited budgets than are found in the Canadian public service and are able to do it without charging.

I would point out that, actually, two of the federal parties at the moment — both the Liberals and the NDP — have included within their platform that they’re going to scrap all processing fees, all fees for requests for information, beyond the initial $5 requesting fee. So I don’t think that it is unreasonable. It is something that we’ve seen done all over the world. I think that it should be considered part of an institution’s core mandate.

D. Eby: Do you have a sense of the cost implications of this recommendation, though?

M. Karanicolas: I have an understanding of the implications. I don’t have access to specific budgets that are….

D. Eby: No, no, just the actual…. I was wondering whether there’d been any look at how much money B.C. collects, for example, under these provisions.

M. Karanicolas: Well, as I recall, the annual report that we looked at said that fees were only levied in 2 percent of cases anyway. So I can’t imagine that this would be a major loss of revenue for the government, would it?

M. Karanicolas: From what I saw in the annual report, they seem to suggest that fees were only collected in 1½ or 2 percent of cases. If that’s the case, then I don’t think there would be a significant budget impact.

D. McRae (Chair): Thank you very much. Noting the time, it is now 1:35. I’d like to thank Michael Karanicolas — I hope I’m saying your name correctly — from the Centre for Law and Democracy. Thank you for joining us for our first teleconference presentation. We look forward to further follow-up in writing, if that’s possible.
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M. Karanicolas: Yes, absolutely. I would be happy to answer any other questions that you have in the writing. Thanks very much for giving me the opportunity.

It is now 1:35, and I invite the AMS Student Society of University of British Columbia. I believe it is Jude Crasta.

Jude, if you allow me, I failed to allow my colleague Sam Sullivan to introduce himself when he came in earlier.

You’ve been here for all the presentations, Mr. Sullivan. If you want to introduce yourself and the riding you represent.

D. McRae (Chair): Jude, we’ve designed a 20-minute presentation for yourself and then ten minutes of questions and answers. If you finish earlier, we have more time for a Q and A. If it’s okay with you, at about the two-minute point, if you’re still going, I’ll let you know that we’re getting close to that 20 minutes. The time is yours. I turn the floor over to you, sir.

J. Crasta: Thank you very much. I would like to thank the members of the committee for having this opportunity to present.

My name is Jude Crasta, and I’m the vice-president, external affairs, of the 106th council of the AMS Student Society of UBC Vancouver. It also pleases me to let you know that we just celebrated our 100th birthday yesterday, October 15. Since incorporation, we have grown to represent over 52,000 students attending UBC’s Vancouver campus. It is the mission of our society to improve the quality of the educational, social and personal lives of our student members.

We are especially pleased to have this special committee undertake a review of act in question. Our submission to this review stems from experience with lengthy processes, stagnations and denials of requests due to a lack of proper coverage of wholly owned subsidiaries of public bodies. As a result of such experience, the AMS respectfully submits the following four recommendations to the committee, as outlined in the document that has been provided.

The first would be addressing the corporate veil problem at universities and school boards where the public body established a wholly owned and controlled subsidiary with the ability to withhold records.

Second would be the removal of provisions in the act giving public bodies the ability to unreasonably delay and remove the ability of public bodies to request extensions of deadlines to respond.

Three, address public bodies’ non-compliance with section 6, the obligation to assist applicants, through penalties and automatic fee waivers for non-compliance with the Freedom of Information and Protection of Privacy Act by public bodies.

The last would be to automatically waive fees for records requested in the public interest and introduce a set fee schedule in order to reduce and control fees and to prevent fee estimates from being used as a deterrent or as a delaying tactic by public bodies.

A little background as to why the AMS makes these recommendations. We’ve had the opportunity to make similar recommendations at previous submissions to past committees. These submissions touch on the public body’s duty to assist and address delays and extensions, the use of fees as deterrents for filing and as delaying tactics, and working towards a clarification of access to information for shell companies like the ones we’re about to mention.

In the case of the university, we see a sizable amount of the university’s finances invested in wholly owned subsidiaries, like UBC Properties Trust, leading to the need for open access and transparency with information and records held by such entities.

I will briefly go over an expansion of details relating to each recommendation in our submission — all four of them. Full details can be found in the document that’s provided to each member.

In the case of wholly owned subsidiaries, we see several entities operate on campus. They use campus resources and have overlapping board appointments with the university — for example, as mentioned, UBC Properties Trust, UBC Investment Management Trust and others as such.

Various in-house operations have been outsourced to these entities — not just at this university but also in analogous entities at institutions like SFU’s Univentures Corporation.

UBC Properties Trust has exclusive rights for all development on the UBC campus. Whether for private market housing, student housing, or academic buildings, UBCPT, as it’s referred to, has exclusive project management rights. No other firms are allowed to operate on university-owned lands, meaning there is no competition — making it a monopolistic enterprise, if not the direct development arm of the university.

The AMS would understand the need for privacy if UBCPT’s competitive advantage was at stake. But seeing as they enjoy the status of sole developer, we believe that they should be subject to the act, just like UBC campus and community planning, the former iteration of UBCPT before it was created.

Many requests are often placed on hold indefinitely. If the records we requested are ever released in different processes, they take the form of very long delays and often are outdated to the point that their utility, essentially, is limited by the time that we receive it. With that in mind, we make the recommendation of address-
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ing the corporate veil problem at universities and school boards, where the body has established a wholly owned and controlled subsidiary for the purpose of withholding these records.

In terms of the delay, I believe in 2006 the act was amended at section 10 to give public bodies the unilateral ability to extend their deadlines to reply to applicants by an additional 30 days if a large number of records are requested. In our experience, public bodies wishing to delay for this reason tend to not ask, or give, essentially, a reason for their time extension, especially in our personal experience. They just take the time. Lengthy delays threaten the fact and the appearance of transparent government and frustrate the FOI request process, as the AMS has seen in many applications that we’ve made.

Therefore, we made that recommendation to remove the provision in the act giving public bodies the ability to unreasonably delay and remove the ability of public bodies to request extensions of such deadlines to respond.

In terms of the obligation to assist applicants, section 6(1) says: “The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely.” However, our experience with UBC suggests that public bodies are failing applicants in this duty. Our recourse in situations like this has been to appeal to the Office of the Information and Privacy Commissioner to compel the public body to respond to our requests. However, this does contribute to the delay times.

We strongly support the creation and legislation of an enforcement measure to automatically waive fees in cases when the public body can be shown to have been remiss in its duty to assist applicants. We feel the committee would be wise to consider a whole system of penalties and fees for public bodies for non-compliance with the act itself. Therefore, we make that recommendation of addressing public bodies’ non-compliance with section 6 through the penalty and fee waivers that we have mentioned.

The last recommendation would go up to the changes to fees and that fee structure. The background for this stems from the fact that when public bodies receive a request for such records, like in the case of UBC, they have the ability to set fees for photocopying and searches. Search fees in particular tend to be very arbitrary. If a public body has poor record management practices, like they do in certain departments within the university, the fees can be extremely exorbitant, especially when it comes to a non-profit society with limited student funding like the AMS.

The only provision in the act with certain limitations exists in section 75(2), stating: “An applicant must not be required under subsection (1) to pay a fee for (a) the first 3 hours spent locating and retrieving a record, or (b) time spent severing information from a record.” For example, a June 2009 request filed by the AMS for UBC records related to the university’s development plans for the UBC Farm cost the society $6,022 for 2,000 pages, and the process itself took nearly a year to complete.

Applicants may apply for fee waivers, but the process is needlessly onerous, since public bodies can set any fees they want within guidelines, and there is no automatic fee waiver for non-compliance with other sections of the act or if the request was made in the public interest. Many requests for records are sometimes abandoned.

We support calls by other participants in this consultation process for amendments to section 25 so that public interest fees would automatically be waived. As such, the AMS makes the recommendation to automatically waive fees for these public interest records and introduce a set fee schedule in order to reduce and control fees and to prevent fee estimates from being used as a deterrent or a delaying tactic by public bodies.

In closing, the AMS would like to restate its pleasure to submit these comments on the act. We represent ourselves here in the best interests of our students, those who attend in this province and contribute to its society and its economy. If we are to uphold the values of our democracy, open access and transparency, these values cannot be loopholed, delayed, deterred on a financial basis.

We sincerely hope that the committee finds these remarks useful in updating the act to improve access to records, particularly those responsive to the requests of students.

In closing, I would like to restate the remarks: address the corporate veil problem at universities and school boards, where a wholly owned and controlled subsidiary has been established; remove provisions in the act giving public bodies the abilities to unreasonably delay, and remove the extension of deadlines to respond; address public bodies’ non-compliance with section 6 through penalties and automatic fee waivers for non-compliance with the act; and automatically waive fees for records requested in the public interest with the introduction of a set fee schedule to reduce and control fees.

I would like to thank the committee for its time here today and for giving me this opportunity to present. Once again, my name is Jude Crasta, and I respectfully submit these remarks on behalf of the 52,000 members of the AMS.

We have a little under twenty minutes for questions. I noticed that Kathy Corrigan had the first question.

K. Corrigan: I wanted to ask you specifically about the last recommendation, waiving fees for records requested in the public interest.

I’m wondering if you have thought about the definition of public interest. I know that in some sections in the act, the interpretation of public interest has been, to my mind, narrow at times. I’m wondering…. Have you
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thought about what you mean by the public interest? Somebody would have to construe what the public interest is. Most people think…. Other than very personal requests for documentation, they think their requests are in the public interest.

J. Crasta: At the AMS, we are definitely not recommending specific language as to what section 25 should look like. But definitely, we would endorse the creation of, essentially, a definition for public interest between the narrow perspective and a broad perspective.

To give an example of things that might be included under that definition, it would be things relating to public land development or a development by public bodies that are taking place. This is why we have tagged it along with the corporate veil issue. Even though we have a private entity and it may seem like a purely commercial action that’s taking place, it’s actually taking place on behalf of a public body.

Essentially, we’d like to see something along the lines of: any action taken by a public body would essentially be in the public interest, unless it were relating to the personal — like in the case of employee relations, HR questions or that sort of action.

K. Corrigan: Just a quick follow-up on that. I was interested…. You’re saying that the UBC Properties Trust and these other organizations are not subject to FOI requests at all. I guess the only time would be if there was documentation, records that were in the possession of government, presumably the Ministry of Advanced Education. That’s the only time that you can get anything to do with….

For example, sales and purchases of land have to be approved, presently, through the ministry. So for that you could probably get information, but all other information you can’t get.

J. Crasta: That makes up a large chunk of it, because the way UBC itself is structured, a lot of the land that the UBC Properties Trust develops on…. They don’t necessarily have to purchase that from a market share. A lot of the land has already been endowed to the university, so they can go ahead and develop it.

In fact, we’ve had experiences where, in meetings I’ve had with the Minister of Advanced Education or at times when my predecessor had meetings with Shirley Bond for Jobs, they were not aware of certain particularities within the land use under Properties Trust. They were largely informed of the land use planning that happened, that was approved by the board of governors of the university and not necessarily when it came to real estate development on campus.

D. Eby: I’m just noting the high quality of your presentation here, Vice-President Crasta, and the FOIPPA presentation as well.

I’m wondering, Mr. Chair, just before I move on to my questions, whether the witnesses might be willing to provide electronic copies of these for distribution to the Clerk so that the committee has access to share among our networks as well.

D. Eby: Great. Specifically, two questions — one specific to UBC and one more generally.

When you encounter these barriers to accessing information within UBC, are you finding that the barriers are at the administrative or at the bureaucratic level — the staff level — of UBC? Is it going all the way up to the board of governors and the president of UBC, or is it staying at the staff level? Is the board aware of the concerns that you have about the process? Have you presented to them on that, and if so, what has the response been?

J. Crasta: I think it really varies depending on the issue and the thing that we are targeting. For example, apart from specific FOI requests that we’ve had, when it comes to getting information in general from the university, we’ve had things like something that’s in the news right now about the university’s denial to issue students the permit to have the end-of-year block party.

It came out of a conversation that UBC Properties Trust played a party to, stating that — I’m not quoting them but paraphrasing here — if the university ever hoped to sell another condo on campus, they would not allow for, essentially, a block party to take place in an area where students pay fees to build a recreational space.

We’ve seen different levels of stagnation and clarity on that — when it comes between staff, sometimes with admin. We haven’t seen that too much from the board. In fact, sometimes things tend to stagnate within the middle admin level than they do at the higher levels.

When it comes to specific FOI requests like this one that was mentioned from June 2009, this was more at the staff and bureaucratic level than it was from anything high up within the board of governors.

D. Eby: Then the wider question I had. You mentioned SFU as having a corporation similar to UBC’s. How widespread are the issues that you’ve identified here in terms of other universities and colleges in B.C. to the best of your knowledge?

J. Crasta: From what I understand from our counterparts at the Simon Fraser Student Society, they have had similar problems. I wouldn’t say necessarily to the extent that we might have had when it comes to UBC Properties Trust, but they have had similar problems with accessing information. It’s not necessarily a flat-out denial, but sometimes they themselves can’t afford the
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bill for an FOI request, and I think that’s where a lot of our problems stem.

What student associations across the province face when it comes to accessing this information, even apart from the corporate veil issue, is that we have a single-year term, and oftentimes we feel — and this may or may not be true — that the administration knows that.

They know the institutional memory can sometimes be limited within our societies and, therefore, prolong the process to just over 12 months or 18 months so that we don’t keep track of this, or sometimes essentially buy us out of accessing the information.

J. Tegart: Actually, it was a similar question to Kathy’s in regards to the public interest, but thank you very much for the presentation today.

D. Routley (Deputy Chair): There’s maybe a different standard that we might be seeking between the information in the public interest when it comes to whistle-blower protection and the release of information from within government as compared to making an FOI request that is defined as being in the public interest.

Have you given thought to how you might define public interest in that context? Because there is a federal Supreme Court case that defined public interest in terms of whistle-blower protection.

J. Crasta: Definitely when it comes to…. I’ll speak to the FOI request from our perspective with the university. I would say that, in those cases, it would go back to a similar example that I mentioned before.

With public bodies other than the government, I would say, when it comes to whistle-blower protection, when it comes to arms of the government, like the university or school boards, any action they take, unless it’s with respect to employee relations or things of a personal nature, those should fall under the scope of public interest.

K. Corrigan: A comment first and then a question. I would agree with your comments about the ability for public bodies to delay, and I’ve done a fair number of FOI requests in my day in a previous life as well. And it certainly was my experience as well that sometimes what you would get…. It seemed like some bodies would regularly….

Routinely, you would get a response after 30 days — working days, which is close to 40 — almost on the day, or on the final day, or a day or two later, but what are you going to do about that?

The letters simply acknowledge the request, and then say, “We’re going to have to take some more time,” and then doesn’t really give a reason. I think you’ve pointed that out. I’ve certainly experienced that in my working life as well. So I think there can be institutionally implanted delays that just are automatically done, and that’s unfortunate.

And then, of course, if you add the extra 30 days…. So you’re actually up to about 80, almost, by the time you might get anything — and if there’s a third party as well.

J. Crasta: If I may just insert a comment, I will second that routine nature. Sometimes we have a clerk of council. He’s our chief archivist, and he usually makes these FOI requests. He has this funny joke where we go wait by the mailbox on the day of, expecting to receive the request for an extension. It’s second nature to the process now.

K. Corrigan: The question that I had was with regard to the 2009 request for records related to the university’s development plans for the UBC Farm that ended up costing $6,000 for 2,000 pages. That’s a heck of a lot of money. Was that fee appealed in any way? Did you try to appeal that? You requested a waiver, but you can then take that as an excessive fee, or believing that it’s an excessive fee or that it’s in the public interest not to have it. So, then, did you appeal that?

J. Crasta: Yeah, we had appealed that. The way the process worked was they would assess the request we made and the reasons we had for it. They denied that request because they didn’t see sufficient grounds as to why we could not pay it. Therefore, the payment was made in October 2009. That’s why we see a delay between when the request was filed and when the payment was actually made.

K. Corrigan: But you didn’t go to the commissioner’s. Can you not appeal to the commissioner as well?

J. Crasta: We could, but at that point, I believe the cost of the process itself and the time with which we needed it to be processed required…. We had to make a cost-benefit analysis and say, “We’d rather pay the $6,000 in this process, get the information now,” because the UBC Farm was something that we needed to really get on instead of waiting for the whole process — which is actually what, we suspect, the university had intended us to do.

D. McRae (Chair): One question I had, as my memory goes back to the start of your presentation. You talked about the corporate veil and referenced UBC’s monopolistic workings within the university. Do you apply different levels of corporate veil to monopolistic entities and then ones that are maybe a bit more open to public competition?

J. Crasta: I would definitely say that we’d make a differentiation when it comes to the specific part about understanding the need for privacy. I think this is where — to
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address other questions — the tricky part of the public interest thing comes in.

But I don’t see there being too much of a concession. I think still, by their very nature, that these bodies are wholly owned and controlled by a public body. They should be held up to higher standards, even if they are competing with a private entity.

Again, we extend our congratulations for the 100th anniversary. I was there for the 75th anniversary and spent five years at UBC. That was many years ago. Anyway, congratulations, and thank you very much for your presentation.

We are five minutes ahead of schedule. I believe that following your departure, we have Stephen Bohus, who is ready to go. We’ll start in five minutes.

D. McRae (Chair): We are now joined by Stephen Bohus, who is presenting. According to my watch, it is 2:06. The intended opportunity here is for a 20-minute presentation. At about the two-minutes-to-go point, I will let you know. For the last ten minutes, there can be a question-and-answer period by committee members.

S. Bohus: Thank you very much. My name is Stephen Bohus. I’m a resident of Vancouver, and I’ve made a lot of FOI requests. But first of all, I would really like to thank the committee for this important work.

The FIPPA legislation, I think, is one of the cornerstones of democracy. It’s very, very clear that we update the legislation with the times. And we also respond that you have an opportunity to respond with some of the challenges right now. I will highlight some points, good and bad, with my experiences.

I’m coming to this from the background of a resident who is making FOI requests. I’m sharing my results with other neighbours, other residents, grassroots organizations across the city and across the region. I’ve made FOI and access-to-information requests over the years on a federal level with other provinces, territories, on the B.C. level and on the municipal level.

I will say that I’ve also asked for non-traditional records — things like computer models, Excel spreadsheets, air photos. So I’m not only asking about e-mails, reports, meeting agendas and minutes. I have some other experience there that’s really not traditional.

In terms of the challenges with the current process, I think my key issue is the enforcement and also the intent of the act and how it’s followed. The timeliness is a very, very key issue.

With Metro Vancouver, I’ve had some really, really great experiences. I think it’s a good example to put forward. They’ve been very helpful. I’ve secured full releases. They’ve understood the spirit of the act. I would say hats off to Metro Vancouver and their FOI department. I think they’re doing a very good job.

TransLink — it’s been a little bit mixed. I’ve had some delayed releases, asking for extensions that may not have been needed. With the city of Vancouver, there are many, many challenges, and it’s going to be the focus of my presentation.

The FOI process at the city of Vancouver is actually broken, and it really needs to be fixed. I think this is an opportunity where many of the shortcomings and issues can be resolved and the frustrations could be straightened out.

I will make a series of specific recommendations. I’m going to try to come back to these at the end, but I’m just going to put them, right now, into the public record.

I believe that the response time should be changed to 30 calendar days, at most, for a response. The committee should perhaps even consider going down to 14 calendar days for a response. I’m finding that the time to get a response is just too long. Extensions are often asked, and they should be limited to a maximum of 30 calendar days. Maybe we can go to the 14-day length.

The results of municipal records should be posted on line with a waiting period of 72 hours. A 72-hour waiting period allows journalists and residents and other people who’ve made the request to have first access to it. But these requests should be made on line within 30 days.

Currently, the B.C. legislation, the main web page, is very good about making the provincial requests on line. I want to commend you for doing that. But the city of Vancouver doesn’t do this. I think municipalities, especially the larger ones, should be mandated by law to make these records available. This should apply to FOIs that are not personal records, obviously.

There are significant issues with fees. Fees create many challenges for residents. In many instances, there is information requested on proposals worth hundreds of millions of dollars — sometimes tens of millions, sometimes just hundreds of thousands. It’s asymmetrical to expect residents to pay $500 or $1,000 or $2,000 for an FOI request when it’s clearly in the public interest. We need that for transparency and accountability.

The assistance, I would recommend, should be expedited. The process should not be suspended if there’s an ongoing FOI. The Office of the Information and Privacy Commissioner should be adequately funded. There are issues with waits for the assignment of intake or of information officers. I’ll go into that.
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If there are problems with certain FOI offices, and it’s systemic, the province should have the ability to audit the FOI offices. If the issues cannot be rectified, then I believe the province should have responsibility to appoint their own team in various municipalities to do the FOI processing.

Redacted information is a very big concern in Vancouver. There’s enforcement of timelines. There are few consequences in not following the act. The act should be simplified. The process should not be intimidating for people who do not know the act inside out, who have not been through the process. It should really lower the barriers to entry for public involvement.

Finally, there are issues…. We heard with the UBC presentation that for government bodies who have other bodies that they control, there are sometimes issues in securing that access. I will mention with the city of Vancouver, there’s EasyPark. I’m not sure if the Vancouver Economic Commission or the PNE fall here, but I can maybe get some help here.

First, I’ll talk a little bit about the Office of the Information and Privacy Commissioner. The public interest should be paramount, and I believe it’s not about immediate health issues. The public interest should be about neighbourhood planning. It should be about community involvement. It should be about planning processes and issues that deal with the spending of public funds.

I think there’s an emphasis with the current leadership in the Office of the Information and Privacy Commissioner on privacy. But the public interest is very, very narrow in terms of immediate health impacts, like chemical spills and so on. I think that should be broad and should be very clear.

The government should be transparent and accountable. I have a specific issue, and I’m going to go into a couple of examples. First of all, I’m going to look at an FOI request I made on September 18, 2014. After much back and forth with the information officer at the city of Vancouver, I have a letter here. I’m going to look at what I can submit. On May 26, 2015, I am told: “Your file is in the queue waiting to be assigned to an investigator, which should occur in approximately four months.” This is on May 26.

This morning, I wrote a reminder. I got the following response: “Your file is still in the queue waiting to be assigned to an investigator. I expect this to occur in three to four months’ time.” So a request that has been made over a year ago has still not been assigned to an investigator. This is a significant issue, because there’s already been a public hearing and a decision has been rendered by council regarding the requested information.

I believe that the records could have been located within minutes, if not within a day or two, if the mayor had called the staff member involved. They would likely have located the same information within minutes, in my opinion.

In its eight annual National Freedom of Information Audit, Newspapers Canada assigned the city of Vancouver a mark of C for the extent of information it disclosed and an F for speed of responses.

If any of you are on Twitter, you may have heard of the hashtag #greyestcity. That’s referring to the greyed-out and the redacted forms that often come from the city of Vancouver or have been known to come. That is a very serious issue where significant records are redacted after long fights. There’s an elected city councillor who is making FOI requests in Vancouver, so I think the process needs to be fixed there.

When I file FOI requests, I’m finding that I’m anticipating making an appeal. I think that’s the wrong way to go about it, and that’s not the way the system should work.

Section 74 says that there are general offences and penalties: “(2) A person who contravenes subsection (1) commits an offence and is liable to a fine of up to $5 000.” Maybe the committee could investigate if any fines have ever been levied under the act in the last six years.

I am concerned about the enforcement and what happens if the act isn’t followed. Who will enforce it? Can I go to the VPD? Well, probably not. Maybe to an external agency. But it’s very difficult to enforce — to have something that has teeth.

In terms of statistics, it might be worthwhile looking at a number of FOIs that have been filed in the city of Vancouver. Has it decreased? Have people been frustrated? Have they given up?

I will mention an issue with the dates. I went in person to the city of Vancouver, the city clerk’s office, and I submitted an FOI on November 14, 2014. I received a letter from the city stating that it will be logged on November 21. The city gave themselves an extra week because of the time that it took them to log it. I have a stamped copy of the original that was submitted in person. I did try to clarify this with Barbara Van Fraassen, to no avail.

Now, the good news is that the information was released, in full, on January 7 of this year, which was reasonably complete. But there was this delay.

The other problem was that I had asked for part of this information beforehand, with a previous FOI, for part of a computer model, and it was a non-responsive record. The second time I asked for some of that information that happened on another request…. The second time, the information is found and released, but the first time around, the information is not found. Really, there is no way to investigate how this happens.

In terms of asking for records, I have asked…. There was Coun. George Affleck, who asked a question of a speaker during a meeting. I’m not sure if it was a council committee meeting. He received an answer about a meeting having taken place in city council. I did ask for records pertaining to that specific meeting, and that was a non-responsive response, but I do have the video clip
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there actually saying that a meeting had taken place.

The question is: who is the correct authority? I don’t think it’s the Vancouver police department. I’m not sure if it’s OPCC or the Ombudsman, but there needs to be a mechanism to really review when the responses are not made or when the same issues come up over and over again.

In terms of municipally owned entities, I did mention EasyPark. I asked for records pertaining to EasyPark. The city of Vancouver should have a copy of those records in its possession. I would think that they would have the financial statements and information on the board of directors and so on. That was refused. If the act had further clarity on municipally owned entities, then I think this would expedite it. We could argue about the definition of a “public body” later.

In terms of another issue, I found that OIPC recommends that people who make requests attempt to contact the municipality directly and resolve the issue prior to submitting the appeal or, at least, send a reminder letter. I have had issues where I had no responses to my letters on trying to clarify an issue. I have a letter that I sent on October 6, this month, and I sent a letter yesterday trying to clarify an FOI, and I have not received a response. It’s very difficult, in that sense. All I can do is file this to the OIPC appeal and just make this part of the record.

I think time is valuable. When the process is frustrating and decisions too long to make, then sometimes council and planners and other people, engineering staff…. They’ve already made a decision, and by the time the FOI is ever processed — if it is processed — then it’s far too late. This is why we need a FIPPA act that has teeth and enforcement.

I don’t know what would happen if OIPC were to make an order and the city of Vancouver or another municipality simply ignored that order. What would happen? I don’t know if it has happened. It’s one of these things. But by the time it would even take to make an order, it’s usually too late.

I will bring up the example of the viaducts debate, which will be up in council next week. I made an FOI request back in 2012, when it had a price tag of $80 million to $100 million. I received very little information, not what I was looking for — information on the contract, on the other options. I know others have tried.

Now this is up in front of council with a $200 million price tag, and we cannot look at, really, the work that was done on the other options to have a meaningful discussion. I think this is the wrong way to make public policy.

In terms of FOIs about the progress of council resolutions, I have asked for this. I believe that council resolutions, when they’re passed and there’s a response due from staff…. It has to be in a queue. I received a non-responsive answer.

There are things that the City of Vancouver could do, such as release information proactively. There is a $1.2 billion budget. It’s pretty opaque. If more information about the budget and other items were released proactively — line items — we would not need to go to FOI.

The process, I think, is intimidating. Maybe if there’s a way to fund watchdogs or to make a section of OIPC that is able to respond to quick enquiries and to try to resolve issues without going first with the appeal, that would be very helpful.

Last year I made a request, and I won. The records were released for 2012 and 2014. This year I made the same request for the same data, for the same records, for 2014, and I have been refused. It’s been redacted, so I have to make the same fight again where there’s already been a precedent made. I’m trying to clarify this. It’s very frustrating.

I think, in terms of the questions to ask…. I’m going to ask four questions. Like is this FOI the subject of…? The records — are they a matter of public debate? Is the subject about the environment or public health or safety? Can you help increase public understanding or debate about a policy, program or law? Or do the records show how a public body is spending money? I’ve got a link to OIPC on that.

I think there’s a lot of work that can be done in opening up the process in municipal FOI releases. Over the years, I’ve noticed this move towards less and less transparency. It’s just getting more and more frustrating.

I’m wondering if there’s an option — if a problem is systemic, whether an audit could be done of an FOI office if there are problem municipalities or organizations identified; and if the province could appoint their own group of people who are independent, who work that FOI office and really resolve issues that are systemic.

I’m not sure how to go about that, but it’s something that…. I know for school boards, you can appoint a new school board if a school board is not within their budget, if they want to run a deficit. If an FOI office is not releasing information with the standards that are expected with the act and there are huge backlogs, then I think that’s something I would encourage and would like to see.

D. McRae (Chair): We’re at 19 minutes. You have another minute or so to wrap up your formal presentation before questions.

S. Bohus: Okay, I’m just really trying to review. But my specific recommendations were to go to 30 calendar days — 14 is even better; really have the extensions explained; have municipalities and other public agencies release records, after a 32-hour wait, that were public records; encourage waiving fees and having reasonable fees, or no fees at all. I think, here, seniors and people who have minimum income should be exempt from FOI fees.

Processes to expedite the process and to deal with the redacted information, deal with timeline issues and simplify the process. Those are encouraged.

I think I am done. Thank you so much for your time and for listening. I hope that the recommendations that come out from this review will be very positive for residents of this province.

K. Corrigan: Thank you for the presentation. You’ve obviously thought a lot about it and have had a lot of experience.

First of all, I wanted to, just by way of clarification…. You talked about a September 18, 2014, request that you made. Then you heard on May 25, 2015, that you’re in a queue. Are you talking about…? Was that the city of Vancouver, or was that a complaint or an appeal that you had made to the commissioner’s office?

S. Bohus: I had already put in the file with the commissioner. They tried to resolve it, and it wasn’t resolved. I was told a three- or four-month wait, and I’ve been told another three to four months’ wait now.

K. Corrigan: Right. That is another barrier — if there are not the resources. My experience working with the office is that the individual adjudicators and officers that you deal with are excellent. It’s just a problem of capacity and resources.

I also wanted to point out…. So what we would have to do, from your presentation, is think about the examples that you have used, particularly with the city of Vancouver, and then look at the act and look at the processes and say: “What could be better in the act?” We don’t have the ability as a committee…. I don’t believe we have any ability as a committee to deal with the city of Vancouver not complying, because we’re provincial, and they’re municipal.

What we would have to do, then, is try to take the concerns that you’ve raised and say: “What could be different about the act in terms of enforcement or timelines or all the things that you’ve raised, and what could be changed in order to make it more accessible?” Although your idea of an audit was interesting.

S. Bohus: I don’t know if the Ombudsman or the municipal auditor are bodies that I can turn to at the moment to resolve issues. I think the FOI is another place where an audit could happen.

Your presentation, for me, raised a number of issues that relate to questions of statistics. You specifically asked about fines — if any fines have been levied against non-cooperative entities and so on.

Certainly, your compelling story about the four-month recurring…. It will be four more months. Sounds like a money pit. Two weeks…. It will be four months before we resolve this or raise questions about the backlog in the OIPC office and the average resolution time for complaints.

Maybe not a question so much for you, sir, as for our Chair. I wonder about our ability to request these kinds of statistics from the OIPC in relation to…. Have they levied fines or recommended fines? What is the average resolution time for appeals? What about the fee appeals that they’re seeing — fees requested versus fees that are actually paid by people? Do we have the ability to get that information from the OIPC to inform our deliberations at all?

I look over to the Clerk. Is there any reason why this committee could not make a request? Maybe if Mr. Eby could formally make that request in writing and send it through the Clerk, and we’ll forward it to the office on behalf of the committee.

D. McRae (Chair): Then, of course, that information would be publicly available as well. So I think…. You know what? If we can’t get it, we’ll find out along the way and see what the hiccup is.

Again, thank you to the presenter for coming with this thoughtful presentation. A couple of good recommendations in there that I look forward to discussing with the committee.

S. Bohus: I do want to clarify that over time I’ve found the city of Vancouver has been going in the wrong direction. There has been a change in the administration since 2008. Former city manager Judy Rogers left, and it has been steadily becoming harder and harder to get the results I’ve wanted. I know that in 2010, I had more success with getting responsive results. It’s over time that it has been getting more difficult.

K. Corrigan: I note that you had some notes there and that you had to kind of hurry up at the end. I’m just wondering if those notes or other written form of the presentation…. I don’t think we got one. I was really in-
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terested in a lot of the comments that you had to make in your suggestions. They were very practical. I just wonder whether or not there’s any way you would — either your notes or if you need to improve them or formalize them a bit more — consider putting them in written form and providing them to the committee.

S. Bohus: Yes, absolutely. I would be pleased to. I do have to review some of the requests that I’ve made, because I’ll likely have to redact part of it. It was an ongoing process with an intake officer, and some of the files that I’ve quoted are actually still open. I will put this in writing and be careful about what I include.

D. McRae (Chair): I’ll remind you, too, that you can submit that in writing up to the end of January of 2016. There’s ample time, but I’ll leave it up to you to make the decision as to what you wish to present and when.

Again I want to thank you — kind of a complex presentation, especially when we’re dealing with multiple municipal jurisdictions. Of course, there are the Community Charter issues, and then there’s the charter for the city of Vancouver, and the province of British Columbia. Thank you very much for your presentation, and I look forward to getting your submission.

Gordon, if I could be so bold, I’ll invite you to come forward in a second here. We’re way ahead of schedule by at least three minutes.

D. McRae (Chair): Hello, Gordon. The traditional presentation standard format we’re using is that we give you 20 minutes to do a formal presentation, if you so wish. At about 18 minutes, when it’s appropriate, I’ll remind you that we’re down to the last minute or so in that presentation. That will give committee members, after that, ten minutes to ask questions — or answers. If we finish early, that is up to your purview.

If the committee members are okay, I’m just going to move forward and turn the floor over to you, sir.

G. Watson: I was born in British Columbia. I’ve lived here all my life. I was before the Court of Appeal last year. Madam Justice Risa Levine said that I am a longtime political activist, which I take as a high compliment. I’ve been involved in all sorts of court, especially criticizing the government — right on the extreme edge. I’m not a lawyer, but I am intensely interested in the FOI Act. I just read about this yesterday in the paper, so I came to it. So here I am.

I know I’m under time constraint, and I will finish on time. I guarantee you. Even if I seem to be going far afield, it’s just to set the context, and I will bring it back to the point. And I’ll tell you what the point is. The point is that any infraction of or interference in the freedom-of-information procedure is obstruction of justice. I have two major cases to make that point, so I’m very interested in straightening the deck.

Me and most British Columbians are disgusted with the government, and we want to see some heads roll. We want to see some serious prosecutions. We want to see heads on stakes. We want to see people prosecuted for high crimes and demeanours.

I will get back to my script here in a minute, but let’s go to just what’s happened this summer, in which, beyond doubt…. We have now four sworn affidavits, the last I heard. Now, I’m just going from media reports.

I was residing in Metchosin there for awhile. John Horgan is the MLA. Apparently, I’m told, Mr. Horgan has, in his office, four sworn affidavits of people — plural — who worked within the government and who were directed by their superiors to delete records which were caught by proper freedom-of-information requests.

I’m sure the people here know more about this than I do, but my point is that the people of British Columbia want to see something done about it. That means people going to jail, and that means serious prosecutions. Yet we haven’t seen that.

Now, in my situation, I’ve been laying private information since about 1983. I’m one of the most experienced laypeople in the country, laying private information…. I’ve laid dozens of them, and I’ve made charges stick. I managed to put David Ramsey in jail. He was a Provincial Court judge. Ultimately, I started that.

I’m not going to tell you all the war stories, but I know how it’s done, and we don’t see it being done, and here it is months later. Now, when you see a street crime or some kind of minor infraction, you see the police out there, and you see people charged and in jail shortly. Yet in British Columbia, we see major crimes, and we see them spun away for years, and we never see any prosecutions.

Back to the FOI Act. Let’s see some prosecutions. Section 5 of the Offence Act is all you need — the provincial act — to start laying charges. I just want to leave you with that.

How come we don’t see any prosecutions? The reason. I’ll tell you a couple of stories. They’re true stories, they’re short stories, and they’re directly on point. It comes to the idea that in my political activity, when I set out to basically criticize the government of the day — it doesn’t matter the political stripe — I was out on the public street picketing, pamphleteering, talking to British Columbians, warning and informing the electorate about issues of the day — my perspective.

I was put in jail by the government from on high, in a roundabout, absolutely illegal, corrupt way by both par-
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ties that have been in power. In both of those instances, which I’ll briefly recap here shortly, I tried to use the FOI Act, and I did successfully. That’s why they went after me.

I should start off…. In 1991, I was thrown into the anti-abortion fray and went to an NDP rally in Victoria, not knowing any better. I was thrown to the floor, etc. It made the national news. From then on, I got dragged into that maelstrom. I don’t do that anymore. I don’t regret a word of what happened, but I learned some pretty serious lessons. One of the major lessons…. No, I shouldn’t go in that direction.

The act was passed in 1993, and it was not put in force. I was living in Burnaby. I went over to Victoria to try and press for it to be brought into force, because there was no stated date. Mr. Gabelmann was the Attorney General. It had been passed, but nothing was being done about it, so I went over there.

I went to the office of the Attorney General on Government Street, the old main office. Who should I meet in the elevator but my cousin, who worked for the Attorney General? I’ve got a hundred relatives over there, and lots of them worked for the government. She tells me that they had been given a full one-day seminar on how to be seen to comply with the act but not comply with the act. She told me that, face to face, after taking a one-day seminar.

Then about that year, I had gone to my first trial in Vancouver for picketing, standing outside the abortion mill at 44th and Victoria. I was on trial for contempt of court. We heard rumours that the Attorney General of the day had met with the abortion lobby at 815 Hornby Street, and that he had dictated to Ernest Quantz, then head of the criminal justice branch, to go after me and get me.

I’m telling you facts, because later on I proved that out of an FOI request, for which I was the seventh person to put in an FOI, in the fall of 1993. Mr. Gabelmann swore an affidavit. It was composed by Harvey Groberman, now a Court of Appeal judge, then his executive assistant.

In my trial, I demanded Gabelmann show up and tell the court what I suspected, and he swore an affidavit which contained false statements, etc. On it went. I served it personally on the office of the AG over there.

Mr. Gabelmann got out of it, but through the FOI, I managed to get some records, written by his executive assistant, Linda Somebody-or-other, in which he had sat there at 815 Hornby in a room full of 24 people, the abortion lobbyists, including David Bellamy, the lawyer for the New Democratic Party at the time. Mr. Bellamy was also the lawyer for one of the abortion mills. They said: “Go get Gordon Watson.” He directed the head of the criminal justice branch to get me, to frame me up and put me away. And they did.

I didn’t know this until about the spring — April of 1994. I got a few pages proving exactly what I’m telling you. These are their own original records.

Now, you’d never get that today, okay? That’s how bad things are today. Along the way, we found out, through Michael Smyth and Vaughn Palmer and these various columnists who wrote about it, that politically sensitive files are flagged. They’re literally flagged, and they’re literally treated with kid gloves. And as you know, the oral culture is now such that you’ll never get these kinds of records.

Anyway, I did get them. I went and laid a private information. They appointed a special prosecutor, Richard Peck. I could go off and tell you all about Mr. Peck, but the main thing to know is that the special prosecutor, the first one appointed, was in a firm called Peck and Tammen, and Mr. Tammen was Mr. Gabelmann’s personal lawyer. In those days, before they changed the law, a partnership in law was one person, so you had Mr. Gabelmann’s personal lawyer investigating for perjury. They got him off. They whitewashed it, and away it went.

That was one of my first experiences. It’s worth saying that at that time Rafe Mair was very interested in that case, and a few other people. The FOI thing was just being learned about. Rafe Mair and I brought on an application, a judicial review for an FOI to get the records whereby the decision was made.

It gets quite complex, but what it comes down to is…. David Flaherty was the FOI commissioner. David Flaherty refused to cough up the records. That very weekend that Flaherty ruled against me — that I should get this material that you’re after — Mr. Flaherty flew away to Washington, D.C., to a little, tiny boutique hotel, and his bill there was paid for by the American Civil Liberties Union.

David Flaherty took a bribe in the form of a benefit for doing what his political friends wanted. So the stench of David Flaherty taking a bribe to pervert his office lingers to this day in that branch. Now, today Elizabeth Denham is doing an excellent job. But that’s something that needs to be said, because nothing was ever done about it.

In those days, 1994, I was very busy just defending myself, doing all sorts of things. I immediately got prosecuted, again, in the summer of 1994. That’s when we found out that Gabelmann had directed Quantz to go after me and frame me up. They did, and I got a couple of criminal charges. But the upshot is that, supposedly, the independent Attorney General used the police powers to go get a political enemy. Elizabeth Cull, the Deputy Premier, had defined me publicly as their political enemy. That’s what happened there.

That’s why the FOI office has been polluted to this day — my point being, had I known the law that I know now, I would have gone and prosecuted David Flaherty for obstruction of justice. That’s what I want to leave you with. Think seriously about…. You don’t need to write into the FOI Act particular offences. You don’t have to, because to obstruct, pervert or defeat justice in the Criminal Code is so all-encompassing that that’s all it takes.
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I’m going to be using it next week to go lay another charge against the judge, a sitting justice of the Supreme Court. This has gone on for nine years. People like me don’t go looking to get our name in the paper. I don’t need this kind of stuff. I would rather be out there milking cows, and I’ll tell you about that in a minute. But nobody else will do anything about it. We’ve exhausted all the possibilities in every direction, and that’s when then I go lay a private information.

To underscore that, in one instance here, the Deputy Premier, Dan Miller, phoned up a judge at home on the Christmas holidays. This is about ten years ago or more. He tried to get an order varied without going in front of the public, and nobody would do anything.

I phoned up Gordon Campbell — then in the opposition; that’s how long ago it was — and said: “What are you going to do?” He wasn’t going to do anything, so I went and laid a private information against the Deputy Premier and Clive Bird, his lawyer, and they got smacked around. It was stayed, but the point is that they won’t be doing that again. And that’s what we need. We need publicity for this. We need some prosecutions.

To tie that off, I managed to get a month in jail for standing out on the street practising Christianity. That was the final episode of my anti-abortion career. They framed up a particular act just to get me, and they made an exemption in the Access to Abortion Services Act so that I couldn’t see the records of money that was spent on abortion in British Columbia — artificial abortion, elective abortion.

So there you go. There’s one of the 43 acts that somebody referred to here. You’re not allowed to see the public accounts of British Columbia if it comes to abortion. Why not? I’m just going to say this once: because the NDP got caught laundering money out of the public accounts, out of the Health budget, back to itself for partisan purposes.

That was proven in the NCHS scandal. Dave Stupich went to prison. I started that. It took seven years, and Stupich was led away in handcuffs.

Along the way, I had enough of that. I could see that there’s a much bigger agenda going on. There’s a genocide being committed against the white race, for one thing, if you want to get really specific. But the abortion controversy was just one little part of that, in which these local University of British Columbia….

The Human Genome Project. What is that? I can tell you. I’m going to stop talking about this after I tell you this. It’s a way to get all the raw material they need to carry on the Human Genome Project, which directly flows from Margaret Sanger, who in 1922 started her eugenics program, the program that the Nazis copied. It’s going on today in your neighbourhood with provincial government money. But that’s enough of that.

I started to pick something that was just way closer to home. I thought it was not controversial. I wanted to get some raw milk for myself. It’s illegal in British Columbia, because the dairy cartel wants to put any independent competition out of business. So they did. They wrote a law. Got caught up in that without half trying. Along the way, they came after me again — meaning the government of the day framed me up personally. I got on national TV and started making a great deal of attention to this issue — raw milk for human consumption, because it’s better for you and the other stuff is bad for you. Sure enough, they framed me up for prosecution, and they went after me.

The reason I know that is because I put in an FOI in about 2010. It showed exactly what I’m telling you — that they went after me personally, Fraser Health Authority pretending to be other than the government. Fraser Health Authority is the government. I know that because Fraser Health’s lawyer, Susan Beach, was hauled into the Solicitor General’s office and dressed down and told to get on with it.

Our prosecution took a couple of years. In the going, I put in a freedom-of-information request — demand — in 2011 for all records to do with my name, the name of our little farm, anything to do with raw milk. They stymied me for about six months, and then they up-set the price. They said: “There are 489 pages of records, and it’ll cost you $1,000.” We argued about that for a year.

So it’s news to me — it’s very interesting here — to hear that only 2 percent of the FOI demands have any price attached. Well, they sure can find reason to attach a price to anybody who’s politically sensitive.

Along it went. It was framed up for prosecution, took a long time to get there for various reasons. We were set for trial in January of 2013, me and Michael Schmidt, who is a raw milk advocate from Ontario. He got caught up in it too.

Sitting on the desk at Service B.C. was a box. This lady — I can’t think of her name right now — was in charge of it. She said on the phone line: “I’m looking at 489 pages.” I had already won the principle that I didn’t have to pay for it because it was politically sensitive and it was right on point. Along the way in 2001, I stood for election in Burnaby-Edmonds as a candidate. So I’m a politician for life, and everything I do and say in public is now qualified speech.

They knew I was coming for trial because I told them, yet that 489 pages was never given to me. We went through a trial in January-February. Judge Wong reserved his decision until after the election. That was one of the ways out. He was a wise judge, and I commend him for it.

Anyway, after the election, Judge Wong came down with his decision. The business day before the decision, they coughed up most of the 489 pages. The point here is that they had withheld those pages from me during the trial. They knew I needed them for the trial. They
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knew I needed them for my full answer and defence, because I was defending myself. Meanwhile, my co-accused, Michael Schmidt, had a very good lawyer.

That’s obstruction of justice, and it’s witting obstruction of justice. Somebody inside the government knew what was going on. I don’t know who. Hema Paupiah works for Service B.C., and she’s the lady who phoned me a couple of times — nice lady. Both times she phoned me, like in the fall of 2012, she said: “Oh, we’re going to send them to you any day.” I said: “Well, you’re a nice lady, and you probably believe that, but I don’t believe it.” And it never happened. Somebody within the government withheld — knowingly withheld — that material from me that I needed in order to defend myself against the charge of contempt of court.

I got convicted. We got three months in jail — 90 days in jail for milking a cow and distributing milk in British Columbia, when it used to be that raw milk was perfectly legal. In the original Milk Industry Act, it was perfectly legal at the farm gate. Somebody changed it along the way, in 1996. Why? Because bribes were conveyed to the government — and I don’t know who yet — in order to write that law to put local people out of business. That’s why it’s there — not because of any health issue. That’s total nonsense. We’ve proved that.

The final bit that they didn’t give us is 100 pages of cabinet consultations. I went through a judicial review, adjudication with the FOI, as to whether they were going to cough up the final pages.

Why it matters is you’ve got the cabinet of British Columbia sitting around the Privy Council talking about raw milk, about me, Alice Jongerden — a friend of mine — and whether raw milk was legal. So we fought about whether I should get this divulged and finally got most of it. Just lately, Mr. Waddell….

You’ve got the Ministry of Health fighting with the Privacy Commissioner, represented by John Waddell, as to whether some of this material should be coughed up. I’m all for cabinet confidentiality. That’s the right thing. But in this case, it was very interesting for me to hear today that you people are thinking about the idea that just because a lawyer advises the government, it doesn’t necessarily catch it with solicitor-client privilege. I’m very happy to hear that.

I could go on, but I’ll underscore this by saying to you that I want to see some prosecutions. If you don’t prosecute them, I’ll do it. I’ve done it before, and I’ll do it again. I got lots to say. I could go on.

D. McRae (Chair): Thank you very much. I also make the request if you wish to present a document by e-mail, by all means, please make sure we give you our address. You can submit it up until the end of January of 2016.

There is now ten minutes to go for questions and answers. Jackie Tegart, do you have a question?

J. Tegart: Yes. First off, I just would like to make a statement in regards to some of the accusations that were made during your presentation.

By listening, in no way does it mean that, personally, I agree. I just want that on the record. There were people’s names. There were accusations made. I have no knowledge of that. I don’t want any misunderstanding that by allowing those statements to be made that there’s any approval of that.

G. Watson: You talk to Don Sorochan, QC, who was a special prosecutor. Mr. Sorochan will give you all the hard evidence you need to substantiate every single sentence I’ve said.

J. Tegart: I’m just very interested in the recommendations around the Freedom of Information and Protection of Privacy Act and any specific recommendations that you think that this committee should give serious consideration to in order to improve access to information.

I just needed to say that. I’m very interested in any specific recommendations. Besides, I certainly heard your request for prosecutions. But other than that, if there are specific recommendations, I’d be interested.

G. Watson: I’d like this committee to turn its mind to the problem. You’ve got a real problem on your hands about what comes through FOI that is going to be used in criminal prosecutions. You’re going to see all sorts of people, more prosecutions. The people of British Columbia are sick and tired of nothing being done.

You have elitists that are untouchable — the B.C. rail scandal being the best example of all. People like me…. I’ve been out to pasture for a while. I was milking cows for years. I loved it, okay? I’d rather be out there right now.

But it’s my calling to come back here, and I’m going to take the bit in my teeth, and you’re going to see trouble coming, okay? So if you listen to people like me who bring valid, intelligent criticism — good. If you don’t listen, you’re going to see real trouble.

D. Eby: Mr. Chairman, I’m sure Ms. Tegart’s comments are shared by everybody on the committee.

G. Watson: What precisely are you saying, Mr. Eby? Because I think that this kind of stuff happened when you were maybe just in high school. Are you telling me that it didn’t happen?

I know that Mr. Peck and Mr. Tammen, for example, are incredibly well-regarded members of the bar by both
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defence and prosecution. You mentioned them by name and made serious allegations.

I’m not prepared to have this committee accept, without any evidence at all, such defamatory comments without noting that, frankly, they are defamatory. These are very well-regarded individuals.

There are many individuals you named. I simply wanted to note my objection to those comments, among many others, that you made, and just put that on the record and reflect that they are probably broadly shared by the committee, although I am certainly speaking for myself. I’m sure anyone who disagrees with that assessment will speak up.

G. Watson: Well, you see, that’s why I told you I have qualified speech. Everything I say can be proven. That’s why I explained to you what a partnership was in 1994, what it isn’t today. It’s a limited partnership.

So Mr. Tammen was, in fact, Mr. Gabelmann’s personal lawyer. Mr. Peck, his partner, whitewashed the whole thing. That’s a matter of fact. If you don’t believe me, go talk to Rafe Mair. Mr. Mair, a lawyer and a cabinet minister many times way back then, before you were still wet behind the ears, was most interested in what I had to say. He put me on the air to say it over British Columbia radio.

We will now take a recess. I’ll give it till 3:15, to allow people to also join in for presentations, out of respect for the general public as well.

D. McRae (Chair): Noting the hour and noting that we have not had a participant in this room for at least 15 to 20 minutes, I ask for this committee to so adjourn. Moved by Tegart and seconded by Eby.

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Chair:	Don McRae (Comox Valley BC Liberal)
Deputy Chair:	Doug Routley (Nanaimo–North Cowichan NDP)
Members:	Kathy Corrigan (Burnaby–Deer Lake NDP)
	David Eby (Vancouver–Point Grey NDP)
	Eric Foster (Vernon-Monashee BC Liberal)
	Sam Sullivan (Vancouver–False Creek BC Liberal)
	Jackie Tegart (Fraser-Nicola BC Liberal)
	John Yap (Richmond-Steveston BC Liberal)
Clerk:	Susan Sourial

REPORT OF PROCEEDINGS (Hansard)

SPECIAL COMMITTEE TO REVIEW THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT

REPORT OF PROCEEDINGS
(Hansard)

SPECIAL COMMITTEE TO
REVIEW THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT