The committee met at 9:06 a.m.

[R. Glumac in the chair.]

R. Glumac (Chair): Good morning, everybody. My name is Rick Glumac. I’m the MLA for Port Moody–​Coquitlam. I’m the Chair of the Special Committee to Review the Freedom of Information and Protection of Privacy Act. We are an all-party committee of the Legislative Assembly.

I would like to acknowledge that we’re meeting today on the traditional territories of the Coast Salish peoples — the Squamish, Stó:lō, Tsleil-Waututh and Musqueam First Nations.

I would like to welcome everyone who is listening and participating in this meeting today.

Our committee is tasked with reviewing the Freedom of Information and Protection of Privacy Act. We’re currently holding a public consultation, including a number of meetings this month, to receive input on the act.

The committee is also inviting British Columbians to make a written, audio or video submission. For more information on how you can do that, you can visit the website: www.leg.bc.ca/cmt/foi. The deadline for submissions is three o’clock on March 31. All the information we receive will be carefully considered as we prepare our report to the Legislative Assembly.

Today we will hear from several presenters. Each presenter will have ten minutes to present to the committee, followed by 15 minutes of questions and answers with members of the committee.

All the audio from our meetings is broadcast live on our website. A complete transcript will also be posted.

For our beginning here, we will do a quick….

Yes, Adam.

A. Olsen: I think that in the introduction, Mr. Chair, you introduced us as being in the Stó:lō territory. I think we are in the Squamish, Musqueam and Tsleil-Waututh territory, just to acknowledge that. I think it was referenced, Stó:lō, but they’re our neighbours.

R. Glumac (Chair): Yeah. I was wondering about that myself. It was in my notes, so I just studiously read it. But I agree with you. It was kind of like: “I’ve not said Stó:lō before, but okay.” Thank you for the….

A. Olsen: Squamish, relatives of Squamish. So there you go.

R. Glumac (Chair): I did say Squamish. I just added Stó:lō. Sorry about that.

All right. Why don’t we start with an introduction from Adam, and then we’ll go around the table.

A. Olsen: I’m Adam Olsen. I’m the MLA for Saanich North and the Islands, which is the other S First Nation in the area here. So Saanich North and the Islands. It’s good to be here today.

S. Chant: Good morning. I’m Susie Chant. I’m the MLA for North Vancouver–Seymour.

I’m pleased to meet you.

J. Rustad (Deputy Chair): Good morning. John Rustad. I’m the MLA for Nechako Lakes, and Deputy Chair.

J. Routledge: Good morning. I’m Janet Routledge. I’m the MLA for Burnaby North.

T. Shypitka: Tom Shypitka, MLA for Kootenay East.

H. Yao: Good morning. Henry Yao, Richmond South Centre MLA.

R. Glumac (Chair): Also assisting the committee today are Karan Riarh and Christina Lech, from the Parliamentary Committees Office. and Billy Young and Amanda Heffelfinger, from Hansard Services.

With those intros, I will now call on the first presenter, Chris Atchison from the B.C. Construction Association.

Take it away.

Presentations on
Freedom of Information and
Protection of Privacy Act

B.C. CONSTRUCTION ASSOCIATION

C. Atchison: Thank you. Good morning. I’m Chris Atchison, president of the B.C. Construction Association.

I want to begin by acknowledging that I’m presenting to you on the unceded territories of the Musqueam, Squamish and Tsleil-Waututh Nations.

[9:10 a.m.]

Thank you for the opportunity to address this special committee. This is an important matter for B.C.’s construction industry and, by extension, for every community and taxpayer in B.C. BCCA represents contractors in the industrial, commercial and institutional sectors. We represent the whole of industry, regardless of labor affiliation.

We advocate for all contractors who are working on or interested in working on any vertical public projects underway or planned in B.C. — schools, social housing, hospitals, fire halls, colleges, cancer care centres, every­thing. Our mission is to ensure a productive and resilient sector. Much of our advocacy time is spent to ensure public sector procurement best practices.

The buying of construction services is one of the biggest spending categories for our government. In the recent B.C. budget, a record-setting investment in infrastructure of $24.7 billion was announced, billions to build those types of projects I mentioned earlier. Some of these projects are not headliners, but they matter to our industry, to our economy and to our communities.

The more than 20,000 contractors, employing nearly a quarter of a million British Columbians, should be seeing this infrastructure spending, these public projects, as exciting opportunities, but I assure you, for the most part, they are not. When contractors aren’t excited, they aren’t bidding, and that’s bad news for everyone.

For example, the city of Prince George recently awarded a contract for $760,000 to replace a public washroom at Carrie Jane Gray Park. They only received one bid. That bid was $260,000 more than the city’s budget for the project.

Unfortunately, this isn’t a rare scenario. Public projects should be the construction projects the industry wants to build. It used to be that way — fair payment terms; strong procurement processes; with fast, shovel-in-the-ground timelines; getting on with construction and getting crews to work — but the number of contractors bidding on public projects is extremely small, relative to what it should be, and it’s getting smaller.

Here’s why. Getting a project right starts way before the shovel hits the dirt. It starts with good procurement. Government procurement should always be fair, open and transparent. I’m here to tell you that increasingly, it’s not transparent, which makes it impossible to tell if it’s fair and open.

Contractors spend time, money and resources in the pursuit of public sector projects. This is viewed as the cost of doing business. They accept this, but we can’t and don’t accept that basic non-proprietary information about public projects is not shared. Industry needs and warrants this basic information.

Some examples — and this is not a complete list — are: access to all solicitation documents; an approximate value of construction, including the size and scope of the project, to decide if they should pursue it and if they can secure bonding for it. They need to know how the owner intends to evaluate bids. Are there contractors already on a prequalification list? And unofficial bid results — the owner must supply the bidders’ names and the amounts bid.

This last one, the failure to release unverified bids, is the concern contractors raise most often. Unverified results are not binding. There is no risk to an owner in releasing unverified results, and in doing so, it’s a standard practice.

Simply put, a bidding contractor needs to know if they were successful or not. If not, they can move on to pursue other work and keep their employees working and their businesses running. When there is a lack of timely and transparent information, the risk and cost of bidding is greatly increased, which is bad for contractors. But it’s also bad for owners, because their projects will stop attracting bidders, which can then impact their budgets and their project timelines.

Here are two recent examples. How did the Ministry of Forests decide who would build its fire zone hangar redevelopment in Vanderhoof? Why was the procurement process cancelled and then reissued with the same documents later? It matters.

Why didn’t the Lower Mainland health authority release the mandatory site visit lists for its Lions Gate, Richmond and Eagle Ridge hospital projects? Who was there? Which general and trade contractors were present? It matters.

[9:15 a.m.]

This information should be a matter of public record. It’s not proprietary. It’s not related to individuals. But it is fundamental to fair, open and transparent public sector procurement in our industry. That’s what we advocate for, and that’s why we’re here today.

BCCA recognizes the government of B.C. has a document. It’s called the Guidance for the Release of Information and/or Documents Related to Competitive Procurement Opportunities. Unfortunately, this is just a guideline and only applicable to ministries. Municipalities, agencies and Crown corporations don’t even have a guideline. BCCA is here to urge the inclusion of such construction-specific requirements under this act.

Often construction projects are as complex to procure as they are to build, but rather than turning to well-established resources and guides, many, at all levels of government, are rewriting their own procurement rules. They think that by hiding information, they are managing risk, but instead, they are putting public owners at risk, putting projects at risk and putting taxpayer dollars at risk. The result is that many quality and qualified contractors are not willing to bid. This is happening at every level of government, from ministries through municipalities, Crowns and other agencies.

Take that earlier example of the public washroom in Prince George — 50 percent over budget after one bid. Now apply that outcome to the $24.7 billion in capital spending in the new budget. That’s a lot of waste. The more compromised and inconsistent the procurement standards get, the more at risk the owners are, and the less compelling the projects become to the capable companies who should be bidding. We need transparency.

Today, if a public owner receives more than two bids per project, they consider it a resounding success. That result, multiple competitive bids, should be the norm, not the exception. Multiple bids drive best value, innovation, competitiveness and ultimately, a resilient economy. Transparent procurement is a critical step to help to achieve that.

BCCA hears every day from contractors that public owners are withholding information that should be made public and engaging in questionable procurement practices — that it isn’t worth bidding. If they do bid, it’s an opaque process with limited and inconsistent information. FOI is one of the only ways to hold the public sector procurement managers accountable to their public obligation for fair, open and transparent procurement practices. Adhering to these obligations is in the government’s best interests, not just the interests of our industry or the taxpayers.

Let’s visit that Vanderhoof example again. In the summer of 2021, the Ministry of Forests issued an RFP to design and build the Vanderhoof fire zone hangar. Contractors, engineers and trades formed teams. These teams worked together to prepare proposals and submitted them by the deadline. This all costs time and money. Then the RFP was cancelled without explanation. Then the exact same RFP was reissued, with only minor revisions and no changes in scope.

Despite our continued efforts, no explanation has ever been given by the ministry. Thousands were spent by proponent teams to respond to the ministry’s initial RFP. This situation is particularly concerning due to the inference of bias or preference. The lack of communication and transparency only furthers that inference. This is one example that helps demonstrate why open access to information is so important for B.C.’s construction industry and for all of B.C.’s public owners and communities.

We have two specific asks related to the act: that the act or the minister responsible for the act establish construction services as a specific category of record to mandate the release of construction procurement information on every public project and that there should be no cost to submit a request for information under this act.

To summarize, taxpayers are spending billions on public construction projects — $24.7 billion from this latest budget alone. Every contractor in B.C. should be confident in bidding on those project opportunities if they want to. Currently they are not.

Public owners should be accountable for their procurement methodologies, and thus, they should be confident to proactively release information. Again, not personal, not proprietary, not trade secrets. This is just standard, basic information. Without unfettered access to information, accountability is approaching extinction, just as record-setting amounts of money are being spent on public construction projects.

[9:20 a.m.]

Government should not make B.C.’s construction in­dustry pay for the necessity of holding public owners to their own best-practice standards in order to ensure that the $24.7 billion in capital spending is spent with the intended integrity.

R. Glumac (Chair): Thank you very much for your presentation.

Members, do you have any questions? We’ll start with Susie.

S. Chant: Thank you so much for your presentation. For those of us who are in different worlds, it’s been very helpful.

At one point, you said that multiple bids were the norm, and there used to be what you would describe as healthy competition. How long ago was that?

C. Atchison: It depends on the projects, but we’re seeing fewer and fewer bidders on the projects now. I would say we could go back a decade, and you’re getting multiple bids.

S. Chant: So approximately ten years since we’ve had that.

C. Atchison: We’ve seen a decline.

J. Rustad (Deputy Chair): Chris, thanks for the presentation.

I’m very keenly interested, obviously, in the Vanderhoof issue, given that’s in my riding. But I’ll get a chance to pursue that, I think, in estimates in the coming months.

A couple of questions around this. You talk about the transparency and the challenge with getting this information. What do you see as the barrier? Is the act actually a barrier in that this act is actually restricting the ability for information to flow because of process? Would you think that…?

Quite frankly, this act was written…. Before the age of the Internet was when it was written. The world was very different. Would it be better if we were in a situation where everything was proactively released except for what the freedom-of-information officer would say couldn’t be released?

C. Atchison: I think it’s a very good question.

We’re already struggling, as it stands, to get the information released in a timely manner, the information that historically was made available — public openings and the like. It’s just more and more difficult to get information that should be available to the contracting community.

These are their livelihoods. Don’t forget that the construction community has to compete and bid on every project. Every one of those bids represents countless numbers of workers in the industry. They’re trying to ensure that there is an opportunity for continued growth and movement and jobs lined up and queued up. When they don’t have that information, it stalls their ability to plan businesses.

We’ve had a challenge in getting information all the way along. I mentioned the guide for proactive release. We are constantly working with the Ministry of Citizens’ Services to make the construction services stand out a little bit more on what should be expected. But as I mentioned, these are only guidelines. Nobody is really being held to account if they don’t follow those guidelines.

What we’re concerned about with the act is not only the additional layer of a potential barrier — to an industry that is already being stonewalled — to access the information it has been historically entitled to in order to preserve the way of doing business as a contractor community that is so essential to our ecosystem of building this province.

J. Rustad (Deputy Chair): If I could just follow up. You mentioned the change in terms of the open bid. When was that changed? When bids would be awarded, everyone put their bids in, and there was a sort of public opening of the bids. When did that change?

C. Atchison: It’s changed within the last ten years. That’s changed. A lot of that has to do with…. The public bid openings used to be an envelope system, where you would attend and actually physically open up envelopes. Everyone would get the results at the same time.

It hasn’t been replicated in the electronic world. Although there are methods to do it, they’re not adhered to consistently across procurement best practices.

H. Yao: Thank you so much for the presentation.

First of all, I’m going to echo my colleague. This is a learning opportunity for all of us. I thank you for sharing so much great information.

[9:25 a.m.]

You mentioned it’s been ten years. I know, based upon your description, it doesn’t sound like a small issue at all. Do you mind enlightening us a bit on the history of your continued communication with different people coming in, in the past about this topic and where it’s been heading? How can we learn from your past interactions and actually provide better feedback for our ministry? That’s my first question.

My second question. We talked about transparency, but it also sounded like you also see inconsistency as well — a certain amount of processing. Do you mind maybe enlightening me?

C. Atchison: Just the second question, Henry. I’m not sure what you mean.

H. Yao: You’re talking about the procurement process. Obviously, in the FIPPA process, you are looking for transparency to access better information. But you are also talking about multi-level government, multi-level ministry — everybody doing their own thing.

Obviously, the issue is…. It sounds like there’s an undertone, a seeking-of-consistency undertone as well, which I would love to hear about, after this FIPPA communication. In regard to the committee, what can we do, as MLAs, to have further communication, maybe encouraging the potential to have a dialogue around consistency as well?

C. Atchison: That’s a great question. I prefer to answer that second one first.

H. Yao: Please do.

C. Atchison: When we recognize that 90 percent of the construction industry is small businesses with 20 employees or less, they have the requirement to bid on projects or to partner with larger trade contractors and general contractors in order to secure bids. But every community you can imagine…. Every municipality, every Crown corp, every major capital spending ministry — all have slightly different procurement methods.

As you are a small contractor, you just want work. You want work for your crew. Sometimes, in any municipality, that might mean a federal project. It might mean a provincial project. It might mean a municipal project. It might be a private project. All of them are going to have slightly different procurement methodologies and interpretations of what best practices are.

We like to utilize or emphasize the capital asset management framework that has been developed in tandem with the Ministry of Finance for years. It’s a great document, and industry has participated in the capital asset management framework for years. And that is recognized. If we could get all jurisdictions to adhere to CAMF as a policy versus a guideline, at least for those that can — the municipalities that get funding from the province, the ministries that are getting money from the budget….

More and more we’re seeing a pulling away from those good principles that are embedded into the capital asset management framework. It’s causing disruption and ripples throughout general contractors, trade contractors, who are forced to apply different procurement methods or to respond to different procurement methods, depending on the jurisdiction and the whim of the procurement managers.

The second part to that is that we recognize that maybe some municipalities or even some ministries have different levels of sophistication when it comes to their own procurement methodologies. Some small communities may not be tendering large projects, whereas larger municipalities are doing it quite regularly. So there is a disparity in terms of public sector procurement knowledge. When the best practices are adhered to, it makes it good. Those become owners of choice. When it’s departed from, it becomes a risky project for everybody.

In terms of getting involved with FIPPA, we have always been proponents of proactive release of information. When the act was being discussed in the fall, we started to take more notice of additional barriers and impacts that it could have to our industry.

T. Shypitka: Thanks, Chris. Kind of weird talking to you outside of a curling rink, but I appreciate it. Great presentation. Thanks a lot.

I noticed that a common theme is a fair, open and transparent procurement process. That’s what we’re all driving for here. You mentioned timely as well, picking up on what MLA Rustad said. We’re in the age of information right now. You mentioned the old-school, open-bid envelope literally being opened right when the bids were being opened. Here we are, in the age of information, and we can’t keep up to that kind of old technology, I guess you’d call it.

What would you call timely? Is that instantaneous? Are there other processes that you’d like to see like an instant flick of the switch? And how would that help the multi-bid system?

[9:30 a.m.]

C. Atchison: Just using an example of unverified bids. Again, I outlined in the presentation that there is virtually no risk to owners to announcing who the unverified successful proponents are and the bid amounts. Proactive release, if that could be done in 24 hours, even in 48 hours…. In some cases, it’s not happening for weeks and/or months, if ever.

That really has a ripple effect, because those entities that don’t know if they are successful are still being held accountable if they are successful. If there’s a delay in award of that project, they could still be on the hook — if they were the successful one — to honour that bid. Meanwhile, the tying up of that information is preventing them from getting bonding on another project that they might want to bid on.

I think, when we’re talking about proactive release, it doesn’t need to be instantaneous. If people want to review and make sure they’re not making any mistakes, 24 to 48 hours would be way more. There is no consistency across the board right now.

J. Routledge: Thanks for your presentation, Chris.

In fact, I think my question may have been answered. It was about proactive release of information. I just want to verify my understanding that what you’d really like is not to have to file a freedom-of-information request. You’d like, for this kind of work, that the information be just made available to you.

C. Atchison: Absolutely. I think the necessity and the importance of the construction industry at large requires public procurement information to just be released. As part of holding the public procurement folks accountable and just being accountable to the taxpayer for those significant expenses, we need to be able to have full transparency on public sector procurement.

R. Glumac (Chair): Just a point of clarity. That’s not your recommendation that you presented to us, necessarily, right?

C. Atchison: The first recommendation was that there be construction-specific services, for transparency, yes.

R. Glumac (Chair): So that’s what you mean by it? Okay.

C. Atchison: I’ll send you the recommendations here.

A. Olsen: One particular phrase you mentioned in your presentation, Chris, jumped right out at me: “Accountability is approaching extinction.”

I think we have to be cognizant of our role here, just to make sure that we have that accountability. So I appreciate that — especially when you talked about the $27 billion that is going to be spent, the billions of dollars that have been spent, and the inability to really understand whether or not we got value for that money that has been allocated already. It’s the kind of value that we would have got, had there been multiple bids and proper disclosure, as you’re talking about.

Why not go back to the…? Why not just make sure that we have the envelope method, where all bids…? You’re talking about having to go back and giving 24 to 48 hours to review the bids. There was a time, not so long ago, where every bid was wide open, and any company that was placing a bid knew that whatever information was going to be in their bid was there?

C. Atchison: We will often use the term “the envelope system” and refer to that as the bygone days, but there are always going to be technological solutions for it. The procurement platforms that are out there right now can do that. It’s just that where that information is arbitrarily withheld, because of the discretion that’s exercised by the procurement body, it becomes a little bit of the Wild West — where we just want consistency.

We’re not asking to go back to a pre-technological existence. We know we can achieve that excellence with technology. So I wouldn’t advocate for that. I would just say that we need a better standard, and we need guidelines to become policy.

A. Olsen: Not really a follow-up but a second question. Just with respect to…. We know that there’s a labour shortage in the construction industry. I think the comments about the procurement process and the information — those are all valid.

[9:35 a.m.]

Just to put into context, maybe, the challenge that construction companies are having with procuring employees, what kind of an impact do you think that’s having on the bidding and on the ability for companies to bid? There has to be some impact there.

C. Atchison: Yeah, I think there is definitely a connection to that. With the workforce shortage that exists in construction and other sectors, the contractors need to be more selective. They need to be more proactive in how they’re planning their schedules, their teams — to be able to stay active and engaged.

They want to go to those projects that they know are going to be treating them fairly — paying them on time, procuring their projects openly and transparently. So it becomes a bidders’ market, to some extent, that you want to be demonstrating good procurement if you want the best contractors, multiple contractors bidding on your projects, because they all have those workforce concerns. At some point, they will make business decisions based on the public procurement methodologies that are being employed or that they’ve had experience with, good or bad, in the past.

A. Olsen: I’ll just maybe end with a very short anecdote. We just finished building a very small addition, in comparison to the projects that you’re talking about — and just the chaos that is involved when a trade is not available or a trade shows up late or comes early. That’s just a minor variance from the program. What you’re talking about — lack of information and tying up resources, such as the ability to bond multiple projects — is challenging.

C. Atchison: Yeah. The complexities involved in the types of construction that the industry…. On the vertical construction side of things, it’s complex. There is no margin for error. It all starts, as I made mention of in the presentation, with good procurement.

H. Yao: Again, Chris, thank you so much for providing great answers to a lot of our questions.

I’m going to follow up on something about a comment that was sort of mentioned by Tom, if you don’t mind me piggybacking on Tom’s comment. You mentioned, in the past, it used to be 24…. You were looking for maybe 24- to 48-hour response time. Obviously, nowadays, according to your observation or your collection of data, it’s more like weeks or months.

You also mentioned you spoke to multiple different levels of government — federal, provincial, different municipalities. Do you mind sort of enlightening us a bit? Have you ever brought this up to maybe even a municipal government or a different level of government and said, “Why is it taking so long? Why couldn’t we have the 24 to 48 hours? Why is digital technology pushing us further away from,” as you called it earlier, “an envelope system?”

This tends to be even more efficient, according to your presentation. Do you mind letting us hear a possible response from them?

C. Atchison: Yeah. We pride ourselves in having good relationships with all of our provincial procurement ministries, the major public-spending ministries. We work with our regional construction associations in the southern Interior, in the North, on Vancouver Island and in the Lower Mainland, to work with municipalities, to help engage with their procurement specialists on best practices as well.

This is a constant endeavour for us to have a proactive and respectful advocacy on best practices in procurement. It’s a major file for us at the provincial level. It’s a major file for the regional construction associations at the municipal level and our counterpart in Ottawa at the federal level.

This is an issue, and I think that this committee can have some impact in making some recommendations that help the construction industry be more effective and hold the entire government accountable for the amount of money it spends on public construction projects.

H. Yao: Do you mind just a quick follow-up question?

I apologize. I hope you don’t mind me just trying to get a detail about your response. I guess my question is still about: “Go back to square one.” Have you ever gotten any other feedback from any other level of government or ministry or municipalities, explaining why they’re taking weeks and months? Obviously, I’m sharing a similar process as you. Like, if it’s not necessary to be delayed, why are we delaying it?

C. Atchison: Yeah, in some cases — and this goes to the extent of the discrepancy — there is proactive release. In other cases, they just say: “We don’t have to give it to you.”

[9:40 a.m.]

It runs the whole spectrum from the provincial government down to the municipalities, where, in some cases, they are proactive. In other cases, we wonder why one ministry or one Crown or one municipality may be proactive and another isn’t. There is no standard. But having no set policy for the entire industry makes the industry run less than efficiently, and it makes the whole system less than trustworthy for those contractors and for this essential industry that’s trying to keep this province running and keep building this province.

R. Glumac (Chair): A final question from Susie.

S. Chant: Final question? Okay. So I need to keep it sweet.

We’ve talked about bids. I am still learning. When bids are coming in, they have to come in for a specific timeline.

C. Atchison: Yes.

S. Chant: Okay. So the timeline is there for the bids in. Once the bids have been…. Are they telling the successful bidder in a timely fashion?

C. Atchison: In some cases, we don’t know. In some cases, there might be a separate negotiation that’s happening. They want to make sure that they know that that proponent is going to take the job. But it’s not open to everybody. So in some cases….

S. Chant: Okay. So the successful bidder….

C. Atchison: The successful proponent may know in some cases, but that’s not helpful if that successful…. It shouldn’t be up to that successful proponent to tell the rest of the industry.

S. Chant: Right. I’m just trying to get the sequencing to understand it in my brain. Okay.

Now, I’ve been involved with the military for a zillion years, and about 20 years ago we got really thumped into a procurement process. I’m just wondering if maybe the military can offer something to the rest of the world that works. What could go wrong?

Anyway, that’s me.

T. Shypitka: If I could ask one last question, Chair.

R. Glumac (Chair): All right, sure.

T. Shypitka: I just want to get to brass tacks a little bit. Is there a fear sometimes, with the lack of transparency when sometimes a winning bid goes to a proponent, that the negotiations alter or change the bid — the specifications or some of the details inside that bid are altered somewhat? Is that a fear?

C. Atchison: Absolutely. That’s a fair comment to make, and this goes back to the transparency issue.

In some cases, we can speculate, or we can hear after the fact, that that may occur in negotiations, which then, ultimately, taints the procurement process itself. That’s just in terms of the perception of that happening in a case where there are multiple bidders. That’s very disenfranchising for those bidders who were not successful on the project but then maybe are feeling that there was some — you know, there’s that inference — favouritism or something untoward. That’s always the risk, and then that becomes the issue for that public body the next time they procure.

R. Glumac (Chair): Excellent. Well, thank you very much, Chris, for your presentation. We really appreciate it.

Next up we have Teri Mooring from the B.C. Teachers Federation.

H. Yao: May I ask Karan a quick question?

R. Glumac (Chair): Yep.

H. Yao: I’m curious. How come, when we have some meetings, we don’t have a FIPPA or maybe someone from the ministry or staff who can also ask questions to us?

K. Riarh (Committee Clerk): I’m sorry. Could you repeat that?

H. Yao: I’m just curious. I feel like we’re asking a lot of complex questions. Wouldn’t it be better if we had ministry or staff here to ask — like the ministry’s side of the story, as well, or to collect information?

R. Glumac (Chair): Well, this is a question through the Chair.

H. Yao: Sorry. Through the Chair.

R. Glumac (Chair): Yeah. I mean, we have the ability, I think, as a committee, to ask the ministry to come in if we have questions. We can always talk about that and schedule that, as needed.

H. Yao: Okay, thank you.

[9:45 a.m.]

R. Glumac (Chair): All right. Well, welcome to the committee, Teri. We look forward to your presentation.

B.C. TEACHERS FEDERATION

T. Mooring: Thanks very much. I appreciate the time. I appreciate the opportunity to present to the committee.

I’d also like to recognize that we’re here today on the unceded territory of the Musqueam, Squamish and Tsleil-Waututh Nations. I’m privileged to be here today.

The BCTF believes that privacy must be a cornerstone of our public education system. Parents, teachers and students trust our public bodies to keep their personal information safe. The BCTF is extremely concerned that risks to privacy are increasing in public education at the same time as recent legislative changes to the Freedom of Information and Protection of Privacy Act, through Bill 22, have moved B.C. backwards, in our opinion, in upholding this trust.

The use of digital technologies has become increasingly ubiquitous in schools across the province. Many of these technologies are used for educational purposes, while others relate to the broader operations of schools and school districts. Educational technologies can support innovative learning options and meaningful opportunities to connect with students; however, they also bring unique privacy concerns.

For example, at the classroom level and teacher level, multiple types of digital tools raise privacy issues. There are various technologies at use in B.C. schools. One is to collect information about students. That’s MyEdBC. Learning management systems, like Moodle and Google Classrooms. And then apps for specific purposes, like e-portfolios. FreshGrade is an example of that. There are also communication and productivity tools, like emails, Microsoft Word and Google Docs, and video platforms for virtual classrooms, like Zoom, Microsoft Teams and livestreaming services.

All of these digital tools collect personal data on students. They require privacy impact assessments, as well as training of teachers and students in privacy issues. However, as digital technologies have proliferated, ade­quate privacy training has failed to keep up. For example, a 2017 survey of BCTF members indicated that only 28 percent of respondents had privacy training, and only half of them found that that training was adequate. This suggests that approximately 85 percent of users had not been adequately prepared for the potential risks of using digital technologies.

It’s also unreasonable to expect individual teachers will have the time to research all the potential tools that might be educationally useful, as tools vary widely between different school districts. Furthermore, the use of these tools across home and school settings extends their reach into teachers’ and students’ homes, raising unique dilemmas for how best to uphold privacy protections. Without strong legislation reinforced by accessible guidance for privacy risk management, the privacy safeguards of public education are being eroded.

Digital technologies are also increasingly used in public education for operational purposes. This includes technologies related to the day-to-day management of schools, such as reporting student absences, and secretarial functions, such as using photocopying services with a cloud-based storage.

Surveillance technologies are also used on school grounds and school buses, framed as necessary for security and safety reasons. A recent example illustrates the privacy concerns associated with those operational uses. In April 2021, a school district in B.C. announced that it was placing overt video surveillance on the interior and exterior of school buses. While framed as a safety measure, the lack of public information on when cameras are recording or on how the information is collected, used and/or disclosed is deeply concerning. The most recent Canadian paper on surveillance technologies and children is from 2012.

In August 2020, UNICEF published an issue brief en­titled State Surveillance and Implications for Children as part of the good governance of children’s data project. There are seven key areas of reform identified in this report, all of which are important considerations for B.C. policymakers, but principles 3 and 7 are of particular relevance and concern.

[9:50 a.m.]

Principle 3: “Include a presumption against government surveillance of children with limited national security exceptions that are concrete, defined and time-bound, such as enacting time restrictions for the retention of children’s data.”

Principle 7: “Resist compelling individuals to use surveillance applications, programs or systems unless validated by legitimacy, necessity and proportionality tests.”

The dynamics created by mobile overt surveillance, which are additional and unique from static overt video surveillance, have led other jurisdictions to consider their impacts in the context of education. More broadly, the inconsistent application and devolving administration of digital technologies across school districts for operational purposes erode trust that they are being governed or administered appropriately.

While the right to be forgotten does not exist currently in Canada, the British Columbia Teachers Federation believes that this should be a guiding principle in advocating for protection and privacy of students as related to data collection, recordkeeping and data storage. The current landscape of data collection in public education makes it increasingly urgent to have strong provincial legislation and guidance related to the use of educational technologies as well as technologies for operational purposes.

However, rather than moving forward as a leader in protecting privacy and students’ right to be forgotten, in our opinion, B.C. has recently taken a step backwards. The passing of Bill 22 in November 2021 was a step backwards for openness and accountability and a missed opportunity to improve the information rights of British Columbians. The resulting changes, which do not reflect most of the recommendations from previous special legislative committees to review FIPPA, are already having significant impacts on B.C.’s students, families and teachers.

The erasure of one of British Columbia’s strongest protections for citizens’ personal information, data residency requirements, is particularly concerning. The increasing use of digital technologies means that substantial amounts of personal data are being collected within the public education system. At the same time, as detailed in a comprehensive report on privacy concerns in K-to-12 education, much of this data is being captured through cloud-based education services, such as those provided by Google, through servers based in the United States.

Data storage in a foreign jurisdiction is subject to the laws of that country. This poses significant privacy risks, which will be amplified as some jurisdictions lobby to get rid of the end-to-end encryption of data. The end of data residency requirements also increases the ability of private technology companies to access and monetize educational data, extending the privatization of public education.

Furthermore, the introduction of a fee for filing freedom-of-information requests reduces the transparency, accessibility and accountability of our public bodies, including public education. User fees create barriers for individuals and communities wishing to access information about public education, as well as for students who want to learn more about our public bodies through their own research.

The Supreme Court of Canada has stated that it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. Our public education system must play a key role in upholding this freedom, not be implicit in undermining it. For this to happen, the BCTF respectfully submits five recommendations for this special committee to consider.

[9:55 a.m.]

The first is to require public bodies to conduct privacy impact assessments on all programs, projects or systems before deciding whether to export personal information. The second is to require public bodies to assess whether there is a reasonable alternative in Canada to a proposed export of personal information. The third is to eliminate the fee for submitting the freedom-of-information request. The fourth is to maintain a presumption against government surveillance of children, with limited national security exceptions that are concrete, defined and time-bound. The fifth is to endorse the right to be forgotten, particularly as it relates to the data of children and youth.

I thank you for your time.

R. Glumac (Chair): Thank you very much.

Susie, we’ll start with you.

S. Chant: Learning. Learning.

Talk to me a little bit about the right to be forgotten. If it was in its perfect state, what would that mean?

T. Mooring: In its perfect state, there would be deci­sions about how long to hold student data.

MyEdBC is the organizational system used to collect information on students. There’s information around students’ individual education programs, as well, housed on MyEdBC.

Our concern is that there are currently no guidelines around when information should no longer be retained. Our concern is that as a child gets older in school — grade 11, grade 12 — do we really need to retain information about maybe some issues they had when they were five years old in kindergarten? Currently there are no guidelines around how long information should be retained and what information should be retained.

This is not a new issue. It’s an issue that we’ve been concerned about for some time.

S. Chant: Was it an issue when there was paper-based? We used to destroy records after a certain point.

T. Mooring: Yeah. It was less of an issue when there were actual physical records, certainly. It was also…. The information that was shared when it was physical records was much more limited than it is today.

S. Chant: Right.

T. Mooring: What went from school to school was very much reduced data about individual students than what’s housed online today about students.

S. Chant: Right. Okay, I appreciate that.

Thank you for your presentation.

H. Yao: Thank you so much for the presentation. I do have a quick question about the removal of the fee, which you recommended earlier. It was one of the five…. It was No. 3, actually, according to your recommendations. The example you gave me was a student’s opportunity to explore the public bodies activity.

I’m going to randomly throw an idea out there. If there is kind of waiving fee maybe around a student project…. It’s probably an educational learning opportunity. Would that be sufficient to match your category 3, or would you need more than that?

T. Mooring: We think that would be a good start, but it wouldn’t be sufficient overall. We just don’t think there should be barriers to seeking information. We don’t think there should be any fees at all. It would certainly be helpful if students were able to access information without a fee, but it wouldn’t completely satisfy what we’re recommending in terms of recommendation No. 3.

H. Yao: Do you mind if I have a follow-up?

R. Glumac (Chair): Okay.

H. Yao: If we talk about your recommendation No. 2, explore alternatives or even do a privacy impact assessment before putting data into, I guess, foreign data residency outside of Canada, would you also recommend something more like annual review? As you mentioned, every jurisdiction changes the law on a regular basis.

Would that be something you would like to see as part of our recommendation — do an impact statement and also look at regular evaluation to ensure that’s also kept up to a standard we initially agree to?

T. Mooring: Yeah. We do think there should be a regular review. We do think alternatives to stored data, especially about children in Canada, should be sought. We see that as important, especially when you look at our current context, in terms of the geopolitical instability currently and the cyberattacks that are currently happening. We think that now, in our current context, it’s even more important than it ever has been that data remain in Can­ada, especially our children’s data.

H. Yao: If you don’t mind, can I follow up with, actually, two more questions? I can wait for the next turn. Just one last question.

If a jurisdiction demonstrates it has better protection than what we have offered in Canada, would you still re­commend that we keep the data in Canada, or would you say maybe there’s a conversation we should have around potentially which company…?

Some of the description explained it to me…. Some multi-billion-dollar companies probably have more financial resources to create greater security than some of our local businesses, which might be smaller. I’d love to hear your feedback about that part.

T. Mooring: Yeah. Well, I guess one of our key concerns is that data is stored in the U.S. and been subject to the Patriot Act.

[10:00 a.m.]

I guess it’s potentially possible that there would be safe storage elsewhere, but we still think that Canada is the best place for our student data to remain. There are no guarantees that that security will remain, whereas we have control over that in Canada — more control in Canada than we would in other jurisdictions.

What we’re recommending is that student data remain in Canada and that the legislation, Bill 22, take a look at that residency requirement. For the residency requirement to remain in Canada is our biggest concern with Bill 22, by far. We’re also concerned about the fee, of course, but the data residency is our biggest concern.

R. Glumac (Chair): Could I just clarify on that point? Your recommendations are that you would require a privacy impact assessment before allowing data to be stored in a foreign country and that you would look for a reasonable alternative. You’re not saying there’s a data residency requirement. Is that correct?

T. Mooring: Well, we understand that Bill 22 is enacted. So what we’re saying is that we would prefer the data to stay in Canada, that all alternatives should be looked at in terms of keeping the data in Canada and that there should be regular privacy impacts of both current and new technologies.

R. Glumac (Chair): So you’re recognizing that there is a large suite of technology out there — some of which may be created by companies in other countries — that would meet student needs and be an important tool, perhaps, for students, but that before you embark on using that, you just want to make sure it’s safe, with a privacy impact assessment.

T. Mooring: We do. Underlined, I think, in this is also the privacy training for teachers. We understand that school districts have various capacities. We have 60 school districts. The larger school districts are better able to have staff dedicated to privacy issues than smaller or mid-sized districts. We are concerned about the level of training that is provided to teachers, and also the information to families.

I mean, you might be aware that right now what needs to happen is a family needs to sign for a student to be able to access all the technologies used at a school, and 12-year-olds and older students are able to sign themselves. We’re not satisfied that the privacy issues and the potential liabilities are fully understood through that process. We don’t think that teachers are fully informed about the potential liability issues around privacy. As our research study showed, it was a very small minority of teachers that got any training at all, and they didn’t find it effective.

Given that context, and the proliferation — I’ll say that during the pandemic, online tools have proliferated at a much greater rate than before the pandemic — our concern is that the technologies are being used by teachers without fully understanding the privacy concerns. About student privacy, it’s not always understood how broadly data is being shared. We believe that that lack of training is rooted in districts just not having the capacity themselves in order to provide that adequate training.

This is an issue that we’ve been talking about for some time. We’ve presented to the Minister of Citizens’ Services. The whole privacy issue — and the collection of student data through corporations and companies that don’t reside in Canada — is something that we have been concerned about for some time. We recognize the usefulness of them, but there needs to be limitations, informed consent, informed application and consideration, in terms of the student data that is being shared.

[10:05 a.m.]

A. Olsen: I think it must be said…. First of all, Teri, thank you so much for your advocacy on behalf of teachers in our province, who advocate daily on behalf of our children in our province. I just want to acknowledge your powerful voice.

It’s really remarkable that we have exposed ourselves in the way that we have. I have a son who works, and whose work is almost exclusively stored, in Google Classroom. That information that he’s creating can be stored and can be used, however Google wants it to be used, once his profile and his avatar start to be created in that system. If the school system is requiring that that’s where the work gets done, then we have, I think, done ourselves and our children a great disservice.

As well, to hear the other side of this that you have raised…. Something that I didn’t consider, certainly, in the debate last fall was the low level of privacy training that teachers are making.

We all know that the apps that we can download are all going to be very useful to us, but we become the product in that. We learned this as I was on the PIPA committee. If they’re not charging you anything, then you are the product. We have teachers who are using tools that may assist them in teaching our children but not fully understanding the implications of the tools that they’re adopting within their classroom, and no framework, provincially, to be able to guide teachers to that.

We’ve also now said that you can store data in jurisdictions where we have no authority or control over the information that’s being stored. Most people don’t read privacy agreements, which is what we also learned in the PIPA…. Most people want the benefit of the app, but they don’t want to take the time. I include myself when I say “people.”

With respect to the surveillance aspects of this, it was 2012, you said, when the latest paper was written about this. Since then we’ve had facial recognition. We’ve had a huge amount of technologies that have evolved in that time. I don’t know how we now, hearing this information, put the genie that we’ve let out of the bottle back into it, frankly. For anybody who has kids, I think they need to be very concerned about the situation we’re in right now.

Thank you for your presentation.

J. Routledge: Nice to see you, Teri. Thank you for your presentation. I actually find it quite disturbing, and it’s giving me a lot of food for thought. I don’t really have a specific question, other than to acknowledge that you kind of scared me.

Where my mind went immediately was the impact that this has on young girls and on predators. Does this open up students, young people, to more predatory behaviour? I ask myself: does the modern age of digital communication put us out of touch? Is there a disconnect between the tools that are available and being used and the principles that we believe in about privacy? There’s a disconnect that you’ve brought to our attention.

J. Rustad (Deputy Chair): Thank you for the presentation. You’ve put a lot of good points forward, and it just makes me think that as a province, we should be encouraging, investing in, a data centre, allowing that information to be able to be stored here by legislation, as opposed to it being out of the country. Your points around the information on the privacy of children being able to get out…. I think those are very valid points, as well as the training.

It does make me wonder. During the pandemic, the Canadian government tracked over 30 million cell phone movements to find patterns, to look for what was happening, and provided that information to Health to help them make some decisions around what they did.

[10:10 a.m.]

That’s not something that is very well known, and I think about all the apps that we have on the phones, as to Adam’s perspective, and how much information is really being collected on us that we may not be aware of through that. So I really appreciate those kinds of supports.

The comments I’ve…. You’ve raised this issue about the privacy impact assessments and this side of things. It was one of the recommendations that one of the things that we should consider as a committee is recommending that the freedom of information and privacy officer come up with some comprehensive guidelines, working with the BCTF and others, so that those rules could then be brought forward and implemented. As a committee, it’s certainly not our expertise, in terms of bringing forward things that are that detailed.

I’m just wondering whether that’s something that you would be thinking about in terms of how something like this could be implemented.

T. Mooring: That’s exactly what we’re thinking — that there needs to be a provincial framework and guidelines and also a provincial standard in terms of what that training looks like. There already is, built within school districts….

As I was saying, there are larger school districts, more capacity. But there is the ability for smaller and mid-sized school districts to also work together in order to better enable the sharing of that expertise. So there are systems in place where school districts can implement a framework and provide appropriate training. We feel that there needs to be a provincial framework around that, so that’s exactly what we’re recommending.

J. Rustad (Deputy Chair): Just one other component, one other question around it. Adam brought this up. It was in 2012, of course, but since then there have been all kinds of changes. But when the Freedom of Information Act was created, it was before the era of the Internet or any sorts of huge technological advancements that we’ve had over the last 25-plus years.

It makes me wonder whether or not we should be taking a whole different approach to freedom of information as opposed to having an act that’s basically restrictive of information — whether or not we should actually be in a place where an act is proactively releasing all information, with the guidelines that are put in place as to what should not be released so that we can make sure that we have the protections in place and we don’t have issues that fall through the cracks.

I’m just wondering whether or not that’s a route that we should be thinking about. It’s a different way of thinking about information, but it gets rid of the issue of the fees and the delays. If you had very clear guidelines as to what shouldn’t be released, then you wouldn’t have these concerns, particularly around things like education and children’s information.

T. Mooring: I think it really depends on what aspects you’re thinking of in terms of public education when you take that approach. Just in terms of student data, for example, I would have to really think about how that approach would apply to student data, because I’m not sure what kind of student data would be released.

J. Rustad (Deputy Chair): If any of it should be re­leased, quite frankly.

T. Mooring: Yeah, exactly. For example, there was an issue around test scoring, provincial assessment scoring. That information should’ve been released to everyone proactively. That’s a good example of proactive releasing of information.

While I’m here, I want to add that in terms of student information and student data — I don’t know if you’re all aware — the Royal Bank of Canada has teamed up with OJO Home Canada and the Fraser Institute to monetize student assessment data. What is happening is that there is an app that has been developed where families can go and take a look at real estate — where those neighborhoods are, whatever the feeder school is. They can take a look at the Fraser Institute rankings of that particular school, and then they can get their mortgage at the Royal Bank.

When we are talking about monetizing student data, that is a very current example that is happening right now in B.C.

R. Glumac (Chair): Oh, interesting. This is data that is released?

T. Mooring: That data’s released.

R. Glumac (Chair): It’s not a breach of data.

T. Mooring: That data is released and being monetized as a result. That’s the issue we have with that.

S. Chant: So it’s aggregate data of scores?

T. Mooring: Yes.

S. Chant: Oh, interesting.

[10:15 a.m.]

T. Shypitka: Perfect lead-in. Thanks, Teri, for every­thing you’re doing. A very strong voice for our teachers and students — critical.

It’s kind of interesting, these committees, right? I mean, we had a presenter before us saying that there was not enough information released, and now we’re having a presenter saying maybe, perhaps, too much. I couldn’t agree more.

It goes back to the whole data residency thing. The fear is that, obviously, once that data is released outside our national jurisdictions, in China or the U.S. — you mentioned the USA PATRIOT Act — that data can be monetized, as you said, and sold off. It breaches the privacy and things of our children. So it’s a big fear. We want to keep that domestic as much as we can, but it always comes down to cost at the end of the day: which jurisdictions do it cheaper and better and store more?

From the BCTF’s point of view, and I think everybody that sits here, where should the criteria be? Is it just the cheapest gets it, or should there be more focus on the value, I guess, of keeping it more secure in our own jurisdiction? Is that fair to say?

T. Mooring: It is fair to say. That’s certainly what we’re advocating for. Again, the closer to home, the more control you have over it. There may be protections, as I was saying, in other jurisdictions, but things can change in other jurisdictions, and we have no control over that.

T. Shypitka: Absolutely. Just to follow up…. Then, on the right to be forgotten, I guess there are different applications. So those timelines to shut that information down or to erase that information….

It’s a one-off on every process, I guess. Bus surveillance could actually, in fact, help a child if there was an abduction and you got surveillance of that action happening. But at the same time, if that information is held too long, that could promote a criminal activity — trends of children getting on buses and somebody getting hold of that information.

I guess what you’re saying is the BCTF would like to be involved in the timelines with each process that the data is collected, to flick the switch, knock it offline, and that kind of thing. I think it’s really important to have that integration between the teachers federation and that collection of data — when it gets shut down and when it remains, I guess.

R. Glumac (Chair): Just to clarify, are you stating that data that is resident is more secure in regards to a potential security breach?

T. Mooring: What I’m saying is that we have more control over the data if it’s in Canada. The other is also controls of how privacy breaches are handled. I know there’s a system in place for that. As I said, there could be a secure place in another jurisdiction where data could be housed, but then that could change over time. What would be the decision-making around when to retrieve that data, for example, when there’s not confidence that that data is any longer secure? Who is tracking that?

There’s a lot of data out there. What we’re saying in particular, about our children’s data, is that it ought to be…. We think that if there is…. We think every step should be taken to have that data remain in Canada.

R. Glumac (Chair): Even if it’s less secure for a security breach?

T. Mooring: I don’t know if that’s a fair comparison, honestly.

R. Glumac (Chair): A lot of effort and hours and hours of development go into security practices. You could have companies in Canada that house data here, and they may not have as strong protocols and procedures on securing that data.

It wouldn’t necessarily mean they’re a better choice than…. I mean, I’m just trying to understand.

T. Mooring: Not necessarily. It’s really hard to deal with the abstract without a concrete example. Certainly, what I can say is that there ought to be secure storage in Canada for our students’ data. That ought to be something that the citizens of Canada should expect.

S. Chant: Going back to a very simple topic, fee for FOI, what is the approximate volume? Are there a lot of FOI requests that come through the school boards and so on for information?

[10:20 a.m.]

At this point, my understanding, if I’m getting it correct, is that if it’s personal information you’re looking for, if you’re trying to track what happened to your kid at this point, there is no fee for that. The fees are for non-personal information.

Do you perceive that that is a significant issue in the current pattern of FOI requests around education?

T. Mooring: There are quite a number of FOI requests based on education, and I know the BCTF submits quite a number of FOIs, as do our locals.

I’ll give you an example of a non-personal one. The former Deputy Minister of Education produced a pamphlet around the values of the foundation skills assessments and made some claims within that document. We did an FOI request to request the research on which those statements were based, and we were told that it would take $8,000 to collect that information, because it wasn’t readily available. This is just one example of quite a number of requests.

Often the requests are not about specific students or private information about students. The requests tend to be more systemwide and based on policies or things that have occurred. That’s where the bulk of the FOI requests come from, I would say, in education.

I’m not aware so much of families making FOI requests. But that could very well happen, I guess, in various situations in schools. It’s not an inconsequential issue, I would say.

H. Yao: Thank you so much for the presentation, again. A great learning opportunity.

I hope you don’t mind me…. I would love to hear your feedback about it, because I’m trying to reconcile two different needs, as you’ve probably talked a lot about. We, obviously — just echoing my colleague, Janet Routledge — definitely want the student population to be protected. We want students to have proper access to FOI wherever possible, that students have education opportunities. We, obviously, want to ensure that a teacher is properly trained.

Yet at the same time, as we have probably seen from the COVID-19 pandemic and as our globalization is moving forward, a lot of different global, international communities are building up different apps, different systems, different processes moving forward. I know our ministry, in the past, had to sign sort of an MOU — is it an MOU that she signed; I apologize — to allow us to actually use the Zoom, even though it wasn’t stored in Canada, in order for us to accommodate. I would love to hear your feedback.

Assuming — well, I shouldn’t assume; this is reality — that we are moving to a globalization age where apps are popping up everywhere, with different kinds of systems accommodating…. In your opinion of BCTF, what can we do to create a relationship or a consistent system that can reconcile between both the needs — to work with great opportunities for students but, at the same time, still be able to say: “They might require data to be stored out of sight. What can we do?”

Would you say your assessment of alternatives in Canada and regular checkups with Zoom would be sufficient? We talk about endorsing the right to be forgotten. Do you want to end it within a year, two years? Or once the person turns 18 should it all be wiped clean?

I’m sorry. I’m struggling between the two. I hope you don’t mind me asking that question.

T. Mooring: No, not at all.

I’ll start with the right to be forgotten. I think the right to be forgotten really does depend on what the information is. For example, as I was saying, right now there is no kind of framework or guideline around how long data is stored. Do we need information to be stored on a database, when a child is graduating, which talks about some behavioural issues they had in kindergarten?

On the other hand, student learning needs and the documentation of their learning needs in order for them to be able to access accommodations for assessments, the current information of that and the current assessments need to be maintained throughout the child’s education, including entering into post-secondary education. So how long data is collected and retained really does depend on the type of information we’re talking about. It’s definitely not a simple sort of solution, and that’s why there needs to be consultation and conversation about how that might happen.

[10:25 a.m.]

I think Zoom is a really good example of a technology that, certainly, we didn’t engage in readily, especially with students. I mean, Zoom wasn’t one of the formats we had used before. But what did happen…. Throughout our process of learning about Zoom, we were concerned, at the beginning, that teachers would be zoombombed and that links would be shared. You heard all these things that had happened in other places.

I think that’s a good example of work being done to really secure that platform and sort of ensure that privacy controls are in place. That’s when there are controls and regulations and the ability to do that. That was a prov­incewide application. Certainly, government…. There has been a remarkable ability to really lock down that platform — in terms of misuse, anyway. As you say, there is a real proliferation of apps and different technologies out there.

What we’re really looking for is sort of a risk-benefit analysis at some point, which can’t be done by individual teachers. Individual teachers don’t have the time to do that. School districts working together — maybe larger school districts — perhaps have the time to do that kind of research, but it’s limited. There ought to be some provincial guidelines around that, just so that you can take a look at it in an informed way: the relative use of that technology versus the risk of where the data goes and the amount of exposure that individual students might have in terms of their data.

In terms of families signing the forms — some of you will have definitely taken a look at those forms, whatever — I think it would be very challenging, even if someone read every word of those forms. I think it would be very challenging to fully understand what it is — the waiver that you are actually signing. The reality is that students…. We know families that haven’t been comfortable signing that, but it means their child can’t access different applications on their computer like their peers in classrooms.

This is a complex issue, and it has become more complex over time. There is no doubt about that. We were concerned about this before Bill 22, but Bill 22 and the residency requirements have really highlighted all the concerns that we’ve had, in terms of the potential exposure of student data.

R. Glumac (Chair): Regarding privacy impact assessments, as you mentioned, some of the smaller school districts might not have the resources to do that. Would you like to see one done at a higher level, a provincial level, that all school districts can look at, utilize and make decisions on? Or would you want to see several school districts do their own privacy impact assessments?

T. Mooring: Given the proliferation of applications, programs and all that, I don’t know if it’s realistic to say that there would be one way to do it, and that would be in a provincial way.

I think there are larger school districts — look at the Surrey school district — that have a lot of capacity in this regard. There might be a combination. There might be some general provincial ones, but then school districts can work together. There are already a number of different kinds of shared services, and school districts that are smaller or mid-sized are able to work together in terms of shared services around some things. This could be one of them.

Certainly, school districts like Surrey could do those impact assessments and then share that information with some of the smaller places. Then in some of the smaller districts, there might be a unique sort of application that they’re looking at. Perhaps they all don’t need to reinvent the wheel. Working together to ensure that that privacy is protected, I think there are a number of ways that that can happen without a lot of difficulty.

R. Glumac (Chair): Hmm. Just to be clear, I was asking if the assessment itself could be shared more widely — not necessarily the decision about which technology to use. That could be at a school district level, but there could be an opportunity to share the assessment itself on a wider basis so that it isn’t taking up the resources of many different school districts doing the same thing.

[10:30 a.m.]

T. Mooring: I think it would be an assessment, and then recommendations for implementation in the various school districts. I think that there would be a couple of elements to that.

It’s also ongoing. This technology has continued to evolve and develop. So this is something that needs to happen on an ongoing basis. It certainly is not static as it was a number of years ago, where there were a very limited number of applications and a very limited number of programs that schools were using. That has really changed and will continue to evolve and change as time goes on.

There needs to be a nimble way to be able to do that — share that information with school districts — and then allow school districts to understand, especially smaller ones that have less capacity, how this might be implemented in your school district. What are the considerations you need to take in place? What are the safeguards that need to be in place in order for this to be appropriately implemented?

R. Glumac (Chair): This has been a very interesting conversation.

To close it off, we’ll have Adam, the final question.

Oh, you didn’t have a question? I thought your hand was up.

Thank you very much for your presentation. We really appreciated it.

T. Mooring: Thank you, all, for your time.

R. Glumac (Chair): Our next presenter is Jordan Bateman from the Independent Contractors and Businesses Association.

Welcome, Jordan. You have ten minutes for your presentation, and then we can have questions afterwards. Take it away.

INDEPENDENT CONTRACTORS
AND BUSINESSES ASSOCIATION OF B.C.

J. Bateman: Thank you for the opportunity to address these important issues, although I must confess, on behalf of ICBA, that we find it disappointing that government convened this committee after passing what we consider to be a very regressive Bill 22. We would have much preferred that that bill had been held back until this process could have unfolded.

Nonetheless, it’s important to put on the record our concerns about B.C.’s freedom-of-information laws. I’m going to concentrate more on the FOI request side, as that’s a lot of what we do.

I have a unique view of these rules. I was trained and I worked as a newspaper reporter. Then I was elected to two terms as a Langley township councillor. Then finally, I’ve been working as an advocate for the past decade for the Canadian Taxpayers Federation and now the Independent Contractors and Businesses Association. While I represent ICBA today as vice-president of communications at an organization with more than 3,500 construction businesses as members employing 125,000 British Columbia workers, I assure you I would have made the same presentation today no matter where I was employed. FOI is important to me.

My first FOI request came in 1995 as a young, bright-eyed journalism student at Langara College. It was part of our course curriculum — learning how to file FOI requests federally. I must confess that 25 years later I cannot remember — I try to wrack my brain — what that FOI was for. I thought it would be a funny story. I can’t recall it. But filing such requests would become an important tool in my toolbox of holding governments accountable.

A decade after that, I was elected to township council in Langley — and the subject of a few FOI requests. The irony was never lost on me.

In my advocacy career, I filed hundreds of requests, many of which have uncovered important government waste stories — for example, TransLink spending $40,000 a pop on TV screens at SkyTrain stations and only seven of the 16 of them being functional a year later.

There was my all-time favorite FOI find, which was a training exercise by the Transit Police aboard an Air Canada passenger liner. They were training their explosive-sniffing dogs. Except that they got home — the officer and the dog — and opened up and counted and suddenly realized they had left a piece of C-4 somewhere on that plane. They guarded dumpsters. They searched the plane seven times. By the way, by that time, the plane was en route with passengers back to Toronto.

[10:35 a.m.]

The Transit Police hid the whole thing. They had press releases ready to go. They had information ready to go. They never released it. We were told by a whistleblower, and we released that information. It changed the way that the Transit Police train their animals. It also changed what Air Canada will do to cooperate with police as far as training exercises. They didn’t make that mistake again.

Those are splashy stories of waste, but information uncovered through FOIs I filed have created lasting public policy change. Leading into the 2017 provincial election, all three major political parties in B.C. agreed that they would scrap the hated medical services premium tax. What led to this stunning agreement among usually disagreeable political adversaries? Public pressure amplified by a campaign by the Taxpayers Federation, which was anchored by my FOI research work.

It was through FOI that I uncovered that more than 850,000 MSP accounts, every one of them belonging to a B.C. resident, were overdue, amounting to half a billion dollars in uncollected premiums. Some 300,000 of those payments were 90 days or more past due. It was through FOI that I uncovered that more than $340 million in bad MSP debt had been written off by the B.C. government in the previous few years. And it was through FOI that I uncovered that the cost of collecting the tax was skyrocketing from $53 million in 2013 to $77 million two years later.

For years, I used FOI and other means to push back on that issue, to educate politicians and to get the media to write stories to bring some heat to the topic, until finally, MSP was scrapped.

Another public policy thing. I’ve seen instances of the current government attacking the so-called scourge of repeated requests, people like Bob Mackin. He gets spoken of in hated tones because he does repeated requests.

Repeated requests through FOI are precisely why we have proactive MLA expense reports posted today, for example. Mackin, myself, others made a practice to FOI expenses in the mid-2010s, until finally, politicians got the message and started posting them proactively. If government’s upset about repeat requests for calendars or spending reports or other monthly recurring reports, you could save more time and more money by proactively disclosing that information.

Today my FOI requests are a lot less exciting than building cases against politicians, bureaucrats or public bodies wasting taxpayer money. Our most regular request at ICBA now is to the Industry Training Authority, soon to be SkilledTradesBC, for apprenticeship numbers.

Until last year, ITA published quarterly reports detailing how many trades apprentices were being sponsored by associations, unions and companies, often breaking it down — well, always breaking it down — by gender, by Indigenous background as well as overall total, overall numbers. While they wouldn’t give industrywide totals, they would list the top sponsors.

ICBA knew this, because we were the No. 1 sponsor — still are — of trades apprentices in B.C. Through FOI, we built on that knowledge. We learned that ICBA and our open-shop members sponsor 82 percent of trade apprentices in B.C., a statistic that no one wanted to release from the ITA.

We don’t get those reports anymore. ITA quit putting them out last year. You could read political reasons into that, but now we have to FOI them. Every quarter we have to send an FOI request for apprenticeship numbers, which were released up to a year ago. It doesn’t make any sense. If the Premier and the minister and MLAs…. If you’re truly concerned about wasting FOI officers’ time, that’s where the waste is — forcing these people to go and request these numbers that we know exist within the government database system because they were being produced in a report one year ago.

I know that Chris Atchison from the B.C. Construction Association presented earlier. I know he spoke a lot about procurement, so I won’t touch too much on that. But vital to the construction industry is knowing that contracts are being properly handled, being able to know that there is light on that process, not just for the protection of the taxpayer — making sure they get the best value for money — but also for the companies to learn, “Hey, this is why I didn’t get that contract,” and to improve their bids going forward. Better bids just mean better value for government money.

Our message to this committee is clear. B.C. freedom-of-information laws need to be reoriented around one principle: that this information belongs to taxpayers, not to the government. This should be the lens through which FOI is viewed: that government should be forced to justify why something is not being made public, not the public forced to justify why we should have access to it. There should be stiff penalties for any official who delays FOI releases.

When I was with the CTF, an FOI request with Trans­Link, asking for employee severance package information…. TransLink ignored our legal right to that information and held it for seven months, admitting later to the Information Commissioner that the completed report sat on the CEO’s desk for almost that entire time.

[10:40 a.m.]

The B.C. Information Commissioner found TransLink broke the law. However, no legal repercussions, of course, for the TransLink officials for this blatant disregard of our rights. They simply carried on, business as usual — no fine, no sanction, no discipline.

If information is the currency of democracy, as Thomas Jefferson is believed to have said, British Columbia is going broke. Taxpayers deserve far better when it comes to open, accountable government. I realize most citizens will go their entire lives without filing a freedom-of-information request or even thinking about a freedom-of-information request, but every single one of them benefits from the information dug out of government through FOI requests by journalists, researchers, advocacy groups and others. Slapping a fee on these requests is unfair and, I believe, morally wrong. This committee should recommend that this fee be scrapped immediately.

It’s not just the information itself that is valuable. Taxpayers benefit from the accountability that comes with politicians and bureaucrats knowing that their work, reports and communications could end up in the public record. We’ve all been — I’m a retired elected official, happily — elected officials. We’ve all had that thought or had someone say to us: “Think about everything you do as if it could land on the front page of the Vancouver Sun.” That is an important piece of accountability that needs to continue within the public service.

As those of us who work in advocacy know, vigilance is paramount when dealing with government. No victory, nor any defeat, is ever final when it comes to democracy. A strong, effective Freedom of Information Act, where citizens have a legal mechanism to obtain information from their government, is a key part of maintaining that vigilance. It’s worth reminding ourselves that.

Wherever we sit in the House, on whichever side, we have seen, over the past 100-and-something years of B.C. history, that the sides switch every time. What you’ve put in place to prevent the opposition from doing one day may come back to bite you when you yourselves are in opposition down the road.

Again, it’s about looking at this through the proper lens. Bob Mackin isn’t wasting taxpayer money by filing FOI requests. The government is wasting taxpayer money by not proactively releasing important, fundamental information by taking up the Information and Privacy Office’s time with ludicrous, heavy-handed attempts to shut people down.

Bill 22 was deeply disappointing to many of us. Listen, I worked alongside with the Taxpayers Federation, and NDP MLAs were some of the most vocal critics of FOI legislation and the way things were being handled then. I thought you were allies in the fight for more information to be released and for FOI to work better. That bill was a dark step backwards, a long step backwards, and it’s frustrating.

There’s a cost to operating a free society where taxpayers can access the information supposedly held in trust by government on their behalf. Democracy isn’t cheap. But the government’s efforts in shoving Bill 22 and an FOI fee through before this committee could sit — that was cheap.

ICBA is a proud member of the B.C. Freedom of Information and Privacy Association. We’re a sponsor of their social media campaign. We were one of the first groups to join their coalition against Bill 22. We stood shoulder to shoulder with dozens of groups — many of whom do not agree with us on anything else, any other public policy facing British Columbia, don’t share our ideology, don’t share our history. We all stood in lockstep, agreeing that the government’s actions on FOI with Bill 22 were repugnant.

I encourage this committee to consider the Freedom of Information and Privacy Association’s recommendations — I believe they’re coming next Friday — very closely, to ban fees on FOI requests and to reorient how we all look at this information, properly identifying it as belonging to the public and being a trust that politicians and public servants hold on behalf of the public.

We’ve been a part of the process — although actually I’m not sure if I’m supposed to show that; it exists already — that BCFIPA has put together for their recommendations. We were part of the process before they came up with the recommendations. They actually asked us what our thoughts were. They wanted to hear from us about what construction and taxpayers and other people were feeling. We’re very pleased with the document that they’ve put together. These are well-reasoned, smart recommendations that I’m looking forward, hopefully, to seeing this committee endorse in full.

That’s it. Thank you for your time. I know that this committee was formed after Bill 22 was brought in. I know that’s not necessarily your faults. But I do appreciate the opportunity to talk and get this off my chest. Like I said, FOI has been an important thing to me in my career for the past 25 years. It’s something I believe very passionately about.

[10:45 a.m.]

R. Glumac (Chair): Thank you, Jason, for your presentation.

J. Bateman: It’s Jordan. But I’ve been called much worse.

R. Glumac (Chair): What did I say? Oh, Jason. Sorry.

Let’s start with Henry.

H. Yao: Thank you so much, Jordan, for your presentation. We really appreciate your time here.

Obviously, based on your report…. There are two layers to it. One is talking about removal of a fee. The second one is a proactive information release. I want to dig a bit more around proactive information release with you, if you don’t mind. Bear with me for my lack of knowledge. I’m a new MLA. I’m still learning as I go.

J. Bateman: Sure.

H. Yao: Is there actually some kind of means or protocol mechanism to allow community groups such as yourself to say, “Let’s collectively figure out which information needs to be proactively released,” where the government has a proper channel to allow that information to be passed on to the appropriate ministries? Or is that just some kind of other — I hate to use the term — fighting in muddy water? You just have to figure out which ministry…. It’s a loose end. There’s no real centralized or streamlined method.

J. Bateman: From the view outside of government, I would say there doesn’t seem to be any streamlined method. Certainly, we’ve never been asked what information we want to have proactively disclosed. The easiest way to do it would probably be to review the categories of freedom-of-information requests over the past several years.

You know, if suddenly we were put in charge of the Industry Training Authority, we’d look at it and say: “Well, gosh. We get asked this every quarter. What’s the problem? We’re going to release it. Under the law, we will release it eventually. So why don’t we just do it proactively?” It would be an interesting reallocation of some FOI officer’s time to actually review that and find those different opportunities to release information.

With MLA expenses, I believe it was LAMC, Legislative Assembly Management Committee, that finally pulled the trigger on that. I used to rag on poor Mike de Jong over and over again about what was taking so long. I knew he believed in it, and I knew he was trying to push it, but it just took a long time to get that mechanism going. That was the last time I can recall being asked about information that should be proactively released.

H. Yao: If you don’t mind, I have a follow-up question for that too. You mentioned quite a few examples of information that used to be released and they can retract it. Is there any kind of mechanism that — again, bear with me on this one — government has to demonstrate before they can retract any previously proactively released information?

J. Bateman: No. Not that I’m aware of, at least.

H. Yao: Okay, I appreciate that. Thank you.

J. Rustad (Deputy Chair): A funny little story about being called something different. As a minister, I was on a panel with a mining conference, and I was introduced as John Horgan. [Laughter.]

Yeah, the mining industry has never lived that one down yet.

One thing that really stuck out here to me is that information should belong to the taxpayer and not government. I think that’s a very important principle. The whole purpose behind freedom of information, when it first came about 25 years or more ago in British Columbia, was as a tool for people to be able to get access to information, because there wasn’t an easy way to be able to provide that information back then. The world has changed dramatically, obviously, since then.

I’ve been asking each of the people that present to us the same question, which is: should we be doing a complete rethink of freedom of information? Technology has changed to the point where everything and anything, essentially, is digital already. It would be simple to have it released, with the exception of rules and regulations that we could put in place as to what can’t be released so that we can actually eliminate this treadmill of requests for freedom of information. I often think now that the act is more on restrictions of information as opposed to freedom of information.

In your experience going through in the past, how do you think something like that could work, just in terms of government transparency?

J. Bateman: I think you sever out the personal information that government holds on behalf of individuals — the students that we heard Teri Mooring just speak about. You sever that out, but on the art of policy crafting, the statistics that are being measured, you’re right. It should be considered a sacred trust.

[10:50 a.m.]

One thing I love about new MLAs is how they walk into the Legislature the first time, and they’re kind of in awe of it, right? For those of you who have been elected a long time, you can correct me if I’m wrong, but my sense is it lasts. There’s this sense of: “This is a sacred trust — this building. I’m here. I’m sitting in this chamber. This is where Davey Barrett sat and W.A.C. Bennett sat.” There’s this kind of sense of how you’re a steward, for a time, of this place.

That is really the same kind of mindset you need to take to the information. The information that the public trusts to the government and to the myriad of public agencies is a trust held on behalf of the public. If we treated it the same way…. “We’re stewards of this for a time. It’s the people’s House, and it’s the people’s information.” How do we actually get that out to folks?

There are ways now to publish…. Publishing content online is cheap. This is not an expensive function. Even if it was, it doesn’t have to be a light switch overnight. It can be progress you make over three, four years, constantly adding more things into public disclosure.

Ten years ago they tried to do that with open data, especially around mapping. There was a lot of that. Those get used constantly. Open data portals are not used by a huge number of people. But the people who use them…. It’s important in crafting other things, going forward. So it’s about just changing the mindset to: “We’re stewards of this information.”

We want to protect the personal stuff, but we want peo­ple to know how we get to certain decisions. We want people to be able to measure how those decisions have affected their everyday lives. That’s a longer conversation. It would mean a lot more work for a committee like this to kind of come to that mindset. But rather than constantly trying to tweak and re-tweak older legislation, it’s probably time to do that.

J. Rustad (Deputy Chair): If I could, just in terms of a follow-up. We live in a real-time world, where everything is instantaneous nowadays. If something happens, then you know about it within minutes, if not sooner.

What would a realistic expectation be for the release of information if you were to be going through this process? I’ll raise things like…. For example, MLAs and travelling. They’re staying in a hotel. They might be concerned about their own safety or what other people could use that information for. So you wouldn’t necessarily want things like that released in real time. But is a month, two months down the road…? What would be a reasonable period of time to be thinking about making sure that information could be made available?

J. Bateman: You have to wait for things like expenses. You have to wait till the bills come in, right? Then they have to be paid and processed, so there are all those different things. So it would just depend on the information.

I mean, you talked about the real-time aspect of it. While we were…. I swear I was paying attention to the previous speaker, but I was also checking Facebook and Twitter. Today Russia turned off Facebook in their country because they didn’t like what was bleeding across the board. It just happened within the past hour. Just like that; they turned off Facebook.

Let’s not go…. We’ve got to be careful a little bit here as to how far we go. But there is that…. It should be timely, the information release, but it doesn’t necessarily need to be immediate. You know, you charge something on your credit card, or the CEO of B.C. Housing charges something on his credit card, and it suddenly appears immediately on a portal somewhere. If it takes 30, 60, 90 days, depending on what it is, that’s fine.

It will depend…. For information for researchers, academic researchers, rather than advocates…. Advocates will want it immediately. That’s just the nature of advocacy. They’ll want it as quickly as practicably possible. Researchers probably would prefer a little bit of a trend line, so they’re a little bit more patient as far as that information comes.

Again, that’s the problem. You’re talking about a proactive disclosure. I think it’s proactive disclosure as a principle and then trying to find the right measure for individual pieces of information.

A. Olsen: I was going to say I think the…. I completely agree. The information is the public’s.

I would expand it to more than the taxpayer. I recognize that the language that you’ve used for many numbers of years, Jordan, has been around the taxpayer. I think, if you were to join that up with the fees aspect of it…. Not all British Columbians are taxpayers. They live here, and they might not pay directly to taxes. Making sure that the public information remains in the public, I would say, is probably the only quibble I have with the comments that you made.

[10:55 a.m.]

J. Bateman: Absolutely, sure. Old habits, Adam. Old habits die hard for me.

A. Olsen: Thank you for your presentation today.

J. Bateman: Can I make one note as well? Just something from the previous speaker that I want to note. There was a lot of conversation during Bill 22 about how silly requests were to look at apps that the Premier had downloaded. I would point out that you just spent a long time discussing the privacy policies around apps.

Perhaps it is a perfectly legitimate request to ask what apps are on the Premier’s phone, since there are privacy policies he clicked for every single one of them. If he’s anything like Adam and me, he’s never read a word of those privacy policies. He’s a busy guy, so I don’t blame him.

I just wanted to throw that out there before. I had written a note when Teri spoke.

Sorry to use your question like that, Adam, for a completely irrelevant piece of….

A. Olsen: No. It absolutely builds on something. If you take a look at TikTok, for example, there are articles that were just released recently with respect to the back door that basically TikTok…. They are not quite clear exactly what it is, but the ability to surveil a phone with TikTok on it is remarkable, and the ability to have that surveillance continue long after the fact that you think it might be gone is even more remarkable. So you raise an important point.

J. Bateman: I live with a wannabe 15-year-old TikTokker, so we have had this conversation many times in our house. It’s a hard one.

R. Glumac (Chair): I don’t see any further questions. Thank you very much, Jordan, for your presentation.

J. Bateman: Thank you for your time. I appreciate it.

R. Glumac (Chair): With that, I think the committee will now go into recess. We’ll reconvene at 11:15.

The committee recessed from 10:56 a.m. to 11:16 a.m.

[R. Glumac in the chair.]

R. Glumac (Chair): We have our next presenter here. Her name is Lua Presidio.

Welcome, Lua Presidio. You’re representing Ubyssey?

L. Presidio: The Ubyssey.

S. Chant: The newspaper for UBC.

R. Glumac (Chair): I see. Okay.

L. Presidio: Yeah, it’s a pun. Someone came up with that years and years ago.

S. Chant: It’s a play on odyssey.

K. Riarh (Committee Clerk): It’s a play on UBC, the university.

S. Chant: Yes. On the word “odyssey.”

L. Presidio: Yes. Someone thought it was funny, and now it’s our name.

S. Chant: Thirty years ago, or more.

R. Glumac (Chair): Excellent. Welcome. We look forward to hearing your presentation. So the floor is yours.

The Ubyssey

L. Presidio: Thank you so much. Hello, everyone, and thank you so much for having me here today. My name is Lua Presidio, and I’m the coordinating editor for The Ubyssey.

The Ubyssey is the student newspaper at the University of British Columbia. We are a non-profit student organization that serves to inform an audience of over 70,000 students, faculty and community members at the university.

Part of our role is holding the university and its subsidiaries accountable. However, we have faced multiple issues relating to the freedom-of-information request at the University of British Columbia that hinder our ability to do our jobs and tell stories that serve the public interest. Unfortunately, none of these issues are new, and the previous two times this committee has met, members of The Ubyssey have come here and presented very similar concerns that have remained unaddressed.

There are three main issues I would like to talk about today. The first issue is the indefinite delays to fulfil requests, which has affected our reporting on multiple occasions. The second issue is the cost of fees when requests are made in the public interest. Third, there is the issue of the exclusion of certain UBC subsidiaries from being subject to FOIs.

Speaking to the first point regarding delays, over the last two years we have submitted 33 FOI requests and none of them have been answered within the required 30 days. Most of our submissions are to the University of British Columbia, so that is what I’ll be speaking mostly on today.

Like I said before, these issues aren’t new. Over the past ten years, unless we requested documents already requested by another party, we have almost never had our FOI requests filled within 30 days. The first delay comes in the interpretation of those 30 days, where the UBC access and privacy office takes the 30-day window to mean 30 business days, which already delays the process significantly.

[11:20 a.m.]

If counting only business days, a 30-day period actually becomes 40 days, and when considering information that has time restrictions to its relevance, such as COVID-19 cases within the Endowment Lands, an additional ten days can be a significant amount of time.

In addition, over the past years, UBC has stopped requesting extensions, instead leaving us to wonder if we will actually receive that information at any point. There are two examples I would like to point to where this has happened. The first is an FOI request we filed on January 26, 2021, for one specific email. We were supposed to receive that information by March 30, but we were never sent a follow-up email until mid-May, when we actually just received the information without any feedback from them.

A common complaint about FOI requests is that they are too broad, and that is why extensions are needed. But this particular request was detailed, specific and very small. The university still doesn’t abide by the act’s rules.

The second example was a request made in May of 2021, where we actually worked with the university access and privacy office to better define the scope of our requests. The date they gave us for fulfilment of the request was June 7, 2021. However, by June 22, we had not received any information or any communication from them. We followed up, and they said they would complete the request within another 30 days.

By October 13, we followed up again, having received no response. We were informed they would be finalizing our package, and it would be ready the first week of November. We did not hear back from them until January 26, 2022, when we finally got the files we requested. It took nine months for this request to be fulfilled, with no formal request for extensions or any communication on their part about needing extra time.

We understand that UBC is one of the most FOI’d universities in Canada. In our correspondence with the staff that work at access and privacy at UBC, they often say they have a significant backlog of requests that they are working through. However, FOI requests play an important role in keeping UBC students informed and holding administrators accountable. These delays are just unacceptable at this point.

Ultimately, what we are looking for are more regulations regarding proper communication practices and penalties when it comes to undue extensions. We have occasionally reported UBC to the Office of the Information and Privacy Commissioner, but they lack the power to make binding decisions, so nothing actually changes. It is incredibly difficult as a small publication to keep large organizations accountable. These delays make it even more difficult.

If we are paying a fee to have this information delivered to us, it is only fair that there is a penalty if extension requests are unreasonable. There need to be real penalties if we plan to actually enforce these 30 days.

The second point I would like to make is to bring up the issue of fees. We are a student newspaper. We have a limited budget. We are one of the biggest student newspapers in western Canada, but we are still struggling with our budget. So you can imagine what it must be like for even smaller publications than our own.

The requests that we make, we believe, are in the public interest. Reasonable requests made in the public interest should not be charged. Government agencies are now charging $10 per general FOI request. It is naïve to think that this fee won’t keep increasing if we, as journalists, don’t keep fighting back. The original proposal was up to $25, which is exorbitant, considering that to get necessary information for a single article, we often need to file more than one request.

In October 2021, The Ubyssey wrote an op-ed on our stance regarding the proposal, which you’ll find attached to the presentation materials I have submitted. Although this original proposal was changed to the $10 fee, there is no guarantee that it won’t be approved the next time FOI fees are discussed. The only way to ensure that fees don’t continue to increase is to ensure that they don’t exist.

UBC has not decided if they will be charging any fees, but that leaves us in a very vulnerable position. Do we need to rush to file our FOI requests before this fee is implemented? Will we even be able to afford to pursue certain stories? A general fee is in direct opposition to the spirit of open access to information, and removing it is the only way to have equitable access to information.

With this in mind, our proposed solution is that fees should be automatically waived for requests made in the public interest. Ideally, a specific rubric on how fees are calculated for larger requests is created and made public.

Finally, going into the exclusions, the Properties Trust and investment benefit trust at UBC are owned by the university but are not subject to any FOI regulations. They deal with millions of dollars in a very prestigious area of the Vancouver real estate market in the middle of a housing crisis. Yet they are open to very little scrutiny. They rarely, if ever, respond to interview requests, meaning that our only way of getting information from them would be through FOI requests, but that is not something we can actually do.

This contravenes the very nature of the act, as it allows the university to route what should be public information into corporation-like entities that aren’t subject to freedom-of-information requests. Changing this is something that we have been fighting for since 2006. It is also something the NDP promised in 2017, during their campaign.

[11:25 a.m.]

I would like to quote them on this: “We support expanding the scope of the act to include information from quasi-public bodies in order to preserve the public’s access to information concerning bodies that are performing government functions.” The exclusion of fully owned subsidiaries by public universities from the act needs to end, and I believe this is a point that you will hear echoed again and again.

In conclusion, those are the three main changes we would like to see. First, there should be more oversight when it comes to the 30-day response time, and potential penalties for indefinitely delaying responses. Although there are legitimate reasons for extensions, currently the university keeps pushing things back and pushing things back again — essentially barriering us from information until it’s no longer relevant.

Second, the only way to ensure equitable, free access to information is by removing generalized fees. If a request is made in the public interest, fees should be automatically waived.

Finally, fully owned subsidiaries of universities should be subject to the Freedom of Information Act. These trusts are managing millions, if not billions, of public dollars, yet due to restrictions of FOI, they are not subject to public scrutiny to hold them accountable at all.

Those are my three main points. Thank you so much for hearing me out today. I am open to any questions.

H. Yao: Thank you so much for your presentation.

I do want to comment on The Ubyssey and the UBC. It is confusing, the way that you described it. I really hope you guys have a name change consideration in the near future.

L. Presidio: Yeah, I know. We’ve had this name for 103 years. I don’t think it’s changing any time soon.

S. Chant: I don’t think it’s going anywhere.

H. Yao: Thank you so much for the really detailed information. I really appreciate what you’ve brought to our attention. You mentioned the $10 per request for an FOI request. A typical article won’t require multiple requests. Do you have an average number that we can play with so that we have some something more concrete we can talk about?

L. Presidio: Well, it’s very difficult to say an average number, because each article is so unique.

H. Yao: Maybe a range?

L. Presidio: I would say that, depending on the article — for example, within features or longer-form articles — we have used two, three or four FOI requests at times. It also happens that with shorter articles, we’ll only need one or two. It really depends on what story we’re pursuing.

H. Yao: Perfect. I have just a quick follow-up question too. You talk about indefinite delays. Thank you so much for bringing that to our attention. You mentioned that a 30-day delay is often possible and that out of 33 requests, none of them even got done within the 30 days.

Do you have the average delay, maybe some data that we can work with so that we can actually talk to our staff to really figure out why the delay is so prolonged — something so that we can actually clearly contrast between what was agreed upon and, as you mentioned, the two really prolonged examples? Do you have an average? In those 33 requests, what is the typical time frame that it has been delayed for?

L. Presidio: I don’t have the exact numbers right now. I would say that usually it’s at least two to three months.

H. Yao: Two to three additional months?

L. Presidio: Additional months, yes. However, in one of the examples that I brought today, it took nine months — a total of nine months — when they had originally said that it would be fine to have it done within the initial 30 days.

I do have one example where we submitted a request, and when we contacted the OIPC office, they said that they couldn’t do much and that a request like that would actually take years. This is not something that we can do as a student publication that has really high turnover. I’m graduating this year. I’ll be no longer here next year. I am here for these changes because I care about this and I think it’s important, but realistically, I’m not going to be the one seeing these changes being put into practice.

H. Yao: Of course. Thank you.

A. Olsen: Thank you for your presentation — very informative.

When you say that fees should be waived for requests that are in the public interest, how do you define “public interest”? For me, it’s very, very broad. How are you defining it in this presentation?

L. Presidio: I think that’s a very fair question.

I think the public’s interest would be…. I don’t think that journalists are doing anything — or at least, we’re not publishing things — because we think: “Oh, it’s fun to write these stories.” We think these stories are important, and the public should know. I think it’s fair to assume that most requests that are coming from serious publications are going to be in the public interest.

J. Routledge: Thank you, Lua, for coming and presenting to us.

My question…. You’ve been very clear about what your requests are and the changes you’d like to see. For some of the other presenters, there seems to be a pattern, a theme of looking for more proactive disclosure.

[11:30 a.m.]

I’m wondering what you and The Ubyssey think about proactive disclosure. Would that address some of your concerns, if the information were just available to you?

L. Presidio: I think that proactive disclosure is very important, and it’s one of the reasons that I didn’t include in my presentation things about our student union at UBC, the AMS. They are very proactive with most of their things. When we request things from them — although they technically do not fall within the FOI Act, I do think they should fall into the FOI Act — the AMS has been very proactive in releasing that information.

A lot of information UBC does provide. However, a lot of the information that we are looking for when we submit FOI requests are things that might not be public. For example, we might be looking for emails. We might be looking for communication between administrators — things like that — that aren’t usually public. I’m not sure they would benefit from being public at the initial point that they are made.

J. Routledge: Okay. A follow-up on that. This is a general what-if, not only applying to yourself but, just generally, changes to the act. It would be hard, I think, for some institutions to know, initially, what to proactively disclose. I’m wondering. In your experience, is there some consistency in terms of the types of requests so that changes could be made, so that kind of information, that theme of information, could become proactively disclosed?

L. Presidio: I think so. One of the examples is the one I mentioned earlier — the one where we did contact the OIPC office. They said it would take years. It was a request made regarding a contract UBC had with Rogers…? I’m sorry. I….

J. Routledge: It doesn’t matter.

L. Presidio: A contract with an external party. I think when it comes to contracts, budgets, any of those very clear…. “This is where we’re going to spend money. This is what we’re planning on doing with the land on campus. These are the deals that we’re making with the companies that we’re making.” Those should always be public and easily accessible.

I think part of the reason that so many FOI requests are filed is that even when information is made public, it’s so hard to access. It’s hidden under hyperlink, hyperlink, hyperlink. You have to navigate through so many different pages to access that information. Once it becomes so difficult to access it, people think it’s not available, so they file FOI requests. I think that’s another issue that needs to be dealt with — making sure it’s transparent, it’s clear, it’s there and it’s easy.

We are very lucky at The Ubyssey to have a very large network of alumni that can support us in finding this information, which has limited the amount of FOI requests we have submitted, because we are aware of how to find this information. However, that is not the case with most people. That is not the case with smaller publications than us. I understand the delays, but part of the delays might be because of the understaffing or too many requests, because the information that should be easily available isn’t.

S. Chant: I got a little bit lost. I apologize for that Again, thank you for your very succinct and clear presentation. I really appreciated it.

When you’re saying the university has an FOI responsibility but entities that are contracted to, by the university do not…. Is that what I understood, or was that…?

L. Presidio: What I’m talking specifically about are not entities that are contracted by the university. They are subsidiaries of the university. They are entirely managed by the university, but they technically do not fall under the FOI Act, because they’re, technically, a separate company. However, they are entirely managed by the university. All their funds come from the university, so they are essentially part of the university. But, for some reason, the FOI Act does not cover them, and we think that should change.

S. Chant: Can you give me a concrete example of that so my brain can work it?

L. Presidio: Absolutely. Within my submission package, presentation package, you will also find a letter that details two of those subsidiaries very clearly and their impact and why it’s very difficult to have information from them.

The name of those two subsidiaries…. I don’t want to give you the brief one.

[11:35 a.m.]

S. Chant: No, that’s fine.

L. Presidio: One of the names is called the property trust. The second one is called the investment management trust. One of them deals with the actual Endowment Lands, and the other one deals with the deals that are made within the Endowment lands.

Again, they’re dealing with billions of public dollars, and we have no idea exactly what they’re up to because that information isn’t public. When we are like, “Hey, can we have an interview with you? Can you please…” they’re usually, not always — always is a very big word — like, “We would not like to comment,” or they do not even reply to us. So it’s just very difficult to get that information without an FOI request.

S. Chant: Thank you so much.

R. Glumac (Chair): I’ll just jump in on the list. Just to be clear, subsidiary corporation, I think, is defined. Well, it’s in the legislation saying that it can be defined in a ministerial order or regulation. You’re advocating for that to not be delegated and that definition to be delegated to ministerial order — but to be specifically defined in the legislation, right?

L. Presidio: Right. The way it’s constructed right now, if we do file, they will simply respond to us: “Well, they don’t fall within the FOI request, so that doesn’t count.”

R. Glumac (Chair): But if the minister defined those particular organizations, then it would be…?

L. Presidio: In 2006, which was the year that I mentioned before, there was a process that was entered — an appeal by Stanley Tromp, I believe. The letter that we wrote in response to that appeal…. There was a back-and-forth. I don’t believe it was defined in the end.

In our presentation package, there’s a letter from 2011 that basically details that entire situation of that back-and-forth and why it was appealed. Then it was appealed by UBC back, and then it was just a back-and-forth where nothing actually changed.

When we asked, “Well, can we get this information from them?” — technically, they’re included in the act — the original response was yes. But then UBC was like: “Well, we’re appealing.” Then the decision was no. Then we appealed again, and then the decision was yes. But then they appealed again, and the decision was no. There was just this back-and-forth, and nothing was decided in the end.

I think it needs to be very clearly stipulated in the act that these subsidiaries should fall under the act more clearly so that there isn’t room for these back-and-forths.

R. Glumac (Chair): Right. I think, in the recent legislation, there was a change, though, in that you could contact the ministry and request that certain organizations be subject to FOI. Have you done that?

L. Presidio: Not yet. A lot of the articles or a lot of the requests that we have made in the past have been things that are years in the making. Right now, especially coming back from online learning, our staff has been very overwhelmed with what is going on, on campus right now. So for us to also deal with everything else that is going on….

J. Rustad (Deputy Chair): Thank you for the presentation. I hope one day you’ll consider a career in politics.

L. Presidio: I don’t think so, but thank you.

J. Rustad (Deputy Chair): Now that you’ve said no, I really hope you can do it, because that’s the right kind of person to go into politics.

The information that you’re looking for and the way you’re going about it…. I’ve been asking each of the people who are presenting the same line of questions, which is: what could extensive, proactive release of information look like? I’m just following up in terms of what Janet was talking about.

Previous people have said that this is public information, and really, the Freedom of Information Act gives an ability to restrict what you can actually get. How could a world like that look in UBC, if it were to be a requirement that everything was proactively released other than the restrictions that would be detailed by, perhaps, the freedom-of-information officer?

I’m wondering. You mentioned one thing which was very interesting — that stuff can get buried because it can go down so many links. It’s there, but it’ll take you a month to find it if you were dedicated enough to try. If it were to be proactive, how could that be made proactive in a way that actually could be useful? If you’ve given any thought to something like that.

L. Presidio: I think it depends on a number of different things. My background is actually design within journalism. I think that a lot of people don’t actually understand human-centred design a lot.

[11:40 a.m.]

I think if this information is public, it needs to be really well thought out in terms of how it’s organized for the public. I think that my fear with just saying, “Well, you have to release everything,” is that it can very easily be done. “Well, we’ll release everything. We’re going to put everything on this single page. It’s an immense list, and you can find what you need.” I think there needs to be thought put into not only, “Well, this information is public, and we’re going to release it,” but we need to make sure that it’s transparent and clear and organized well enough that it’s easy to find.

J. Rustad (Deputy Chair): Or proper search engines for it.

L. Presidio: Yes. Search engines are a little bit more complicated. What is always ideal is proper structure within a website.

T. Shypitka: Thanks for the presentation. I think John is asking you to move to Vanderhoof to take over his seat, perhaps. I’m not too sure what you were getting at there. Thanks for the presentation, and congrats on the recent awards. I think it was a John McDonald award you were selected for, and that’s great. Awesome.

You mentioned about getting the information in a timely way and being promised 30 days and rolling out now to nine months. Obviously, that’s not a good impact on the stories that you’re doing and things like that.

I guess the question is: how has that negatively impacted a news story? Are you getting to the point now where they’ve become so irrelevant that you lose that story entirely because of that lack of information?

Then the second part to that is you mentioned something about COVID cases. Was that information request relating to COVID stuff? Maybe, more specifically, what kind of information were you looking for? Just two questions there.

L. Presidio: Consistently, stories just die. We call them dead stories because they are no longer relevant, or we can’t write them. Although we know we have a lead and we have something to go on, we just can’t get that information, so these stories die. There have been multiple stories within the way…. Specifically, one example I can point to is regarding the Properties Trust and Investment Management Trust at UBC, where some of these stories have simply died because we can’t access information.

However, regarding COVID cases, in the beginning of the pandemic, UBC did not release COVID case counts at all for the University Endowment Lands. That was something that we fought for, for a really long time, for almost the first entire year of the pandemic, to be like: “We need to make sure students are aware, because there are students still living in residence.”

Even though a lot of students have left, there are still a lot of students and people and grad students and faculty and staff members that are still living on campus, and they deserve to know and have access to this information.

UBC. Because their numbers are not released with the rest of Vancouver, that information was just not released at all. Now, it has been released, and we do have access to that information, but it was something we fought for, for almost the entire first year of the pandemic.

T. Shypitka: Just to follow up, obviously that’s public safety, right? So you felt that that suppression of information could have jeopardized residents of UBC. Yeah. Okay, thanks.

R. Glumac (Chair): We have a final question from Henry.

H. Yao: Two questions, if you don’t mind.

R. Glumac (Chair): Final two questions.

H. Yao: Final two questions. I apologize.

Thank you so much for your time. The first question. You mentioned that this indefinite delay has been something you guys presented multiple times to the FIPPA Committee before. Do you know how far back we’re talking about?

L. Presidio: I was looking at documentation, and I looked at documentation as far back as ten years ago. I could see issues with those delays ten years ago.

H. Yao: My second question. Again, disclose information at your level of comfort, please, because I think I might be asking something that could be a bit sensitive on your end. Because you’re talking about $10 for FOI requests, that could be difficult for a limited budget. Of course, now you’re reporting on UBC, and I’m just wondering, for your revenue structure: is the media actually dependent upon UBC’s financial support, or do you guys have your own advertising support?

L. Presidio: We are entirely independent from the organization. We’re entirely independent from the student union. We are very lucky to be able to be independent. It’s not something that a lot of other student publications are.

[11:45 a.m.]

Our funding comes mostly from our advertising or from student fees, where students can actually opt out if they do not want to receive our services. I believe the current fee is around $7.

H. Yao: You mentioned that there are other student-based media that actually depend upon the university. So $10 per FOI request could create a conflict of interest when they are actually investigating the very organization that provides the financial support for the student media.

L. Presidio: Well, UBC doesn’t provide us money. Again, they are student fees that students can opt out of if they do not feel that they benefit from our service. My concern is that…. The Ubyssey is the biggest student organization in western Canada. We’re very proud to have so much history and to be the size that we are. However, I’m not here just for me. There are many other small organizations that do not have the budget that we do.

We’re very lucky that if this was done at UBC, realistically it might not impact us that significantly unless we’re pursuing a very big story with a number of FOI requests. However, for smaller organizations that have a more limited budget than we do, that might be the meaning between “I’m going to pursue a story and hold my administrators accountable” and “I can’t do this story at all.”

I do think fees are, again, in direct opposition with the nature of free information. If you are charging for something, you are already excluding a large part of the population to access that service. I understand that the reason that the fees were put into place was because of these delays and understaffing and all these issues. However, there are other ways to make sure that FOI requests are more specific. There are other ways to make sure that when people are requesting, they are not just requesting: “Well, give me all the emails this person has ever sent.” They are requesting it in a formal way.

Like I said, The Ubyssey is very lucky to have a network of alumni that we can reach out to and be like: “Hey, can you please help me formulate this?” So when we submit things, they are very informed. However, that is not the case with everyone.

Another proposition that I included in my presentation package but didn’t really mention here today is that something that could be helpful is simply having a very detailed guide on actually what the expectations are when you submit an FOI request. I don’t think that charging a fee is the solution. I think giving people more tools is the solution.

R. Glumac (Chair): Well, thank you, Lua, very much for your presentation. It’s clear that you’re very passionate about this issue, and we definitely appreciate your feedback. So thank you very much.

L. Presidio: Thank you so much.

R. Glumac (Chair): Our next presenter is Charlotte Dawe.

Welcome.

WILDERNESS COMMITTEE

C. Dawe: Hello. Thanks for having me. My name is Charlotte Dawe. I work for the Wilderness Committee. I’m the conservation and policy campaigner.

I deal a lot with species-at-risk protection, wilderness protection, holding government and industry accountable, working on laws or the lack of laws that we have in this province to protect species at risk. I’ve used FOIs a number of times in the history of working at the Wilderness Committee. Obviously, this will be background information for everyone here, but why not?

FOIs are a tool to ensure government accountability and transparency. In my line of work, there have been so many times where I’ve thought to myself: “I should FOI that.” I’ve pursued FOIs because I have an unanswered question or a decision that was made from government that I don’t have enough information to understand why they made that decision.

I search internally to see if there’s something I’m missing or information I’m not privy to. This is why we file FOIs. And living in a democratic society with a government that should be held accountable, this is a tool that is used to ensure that. We’ve used many FOIs, as a public interest watchdog. Many times we were successful in obtaining documents that we needed, but more often than not, we weren’t.

[11:50 a.m.]

I’m going to walk you through three times that I filed FOIs and my experience with those. In those three circumstances, I was unable to get any records back. I don’t believe that’s due to lack of care or effort.

The first one was in 2017. The Environment Minister, George Heyman, had a mandate to issue a species-at-risk act. I’m sure this is not news to most of you.

S. Chant: I’m sorry. What kind of act?

C. Dawe: A species-at-risk act. A law to protect en­dangered species.

Things were in motion. Stakeholders were going to consultations. I was going to consultations. Everything was happening. Everything was looking good. Then abruptly, in 2019, John Horgan, at a press conference, said: “There’s no law in the foreseeable future.”

This came as a surprise to me and MLAs. I remember talking to one about a week after, and he said: “No, I think we’re still working on one.” So this decision by John Horgan that was announced at a press conference really did come out of nowhere. That’s one of the moments where I thought: “I should FOI this.”

I FOI’d a very a narrow scope of three months from when I knew they were still working on the law to around the time that he, John Horgan, made that announcement. It was a very specific search. It was for all emails, including any attachments, any other communication, cliff notes, decision notes, briefing notes relating to the cancellation or pause in implementing a provincial endangered species legislation, also known as B.C.’s species-at-risk act, within the ministry. That includes all formal communication pertaining to the name “B.C. endangered species legislation.”

I tried my best to check all the boxes, say all the key words — everything like that. On February 5, they got back to me and said there were no records found and: “We’re closing this file.” So I’m thinking to myself…. The Minister of Environment, George Heyman — it was his file. Surely he should have been notified of a cancellation or pause in this law. But apparently he wasn’t. So then, that leads me to believe…. Is there a failing in duty to document? Am I not putting in that very specific keyword search?

I think this is just one good example of how it was very clear what I was asking for, but because, maybe, I had just one word off, or that phrase was off…. Maybe they were calling it “an act for species at risk.” I don’t know. Maybe it was something so simple like that. I think an FOI analyst, a senior analyst, should be able to work with me and the ministry, because it’s very clear what I was asking for. So if I was missing something, that should have been picked up.

Number two. This one’s a bit of a doozy. I don’t know how many of you know about the caribou partnership agreement. This agreement was ongoing, proposed by West Moberly and Saulteau First Nation — an amazing agreement, probably the best of its kind for caribou.

Around 2017, there was big industry pushback. Logging companies were posting in community online forums and in their local newspapers about job layoffs and all the impacts that would come from this agreement. There was quite a strategic and very organized campaign from industry to put fear in the public, and they did just that.

Government started to waffle a little bit on their plan, and I started to doubt if this plan would ever go through. So I just wanted to see what was happening internally and what was going on between industry and the government behind the scenes. I wanted to know what conversations were being had that I wasn’t privy to. I filed an FOI that was eight months. It’s a larger scope. I knew it would be a big FOI, relating to the partnership agreement within the Ministry of Forests that mentioned one or more of the following…. Then very specific names of very specific people, which I won’t name, because it doesn’t really matter.

I sent this in to a senior FOI analyst, and we actually worked on it back and forth for quite a while, doing revisions. Finally, he said: “Okay, that one suits the ministry. They said they’re good with that. Let’s go with that submission.” So I submit it. He came back with a 30-day extension. That’s fine. I understand it’s going to be a big FOI. Then I was issued a fee of $1,000 for the records. I’m like: “You know what? It’s going to be big. I expected that.”

[11:55 a.m.]

I do work for a non-profit, so I have access to a little bit of funds. Still, I filed a fee waiver request because it was in the public interest at the time. This was in the newspaper. So it was very, very at the top of public mind.

They granted 75 percent of it, so then I paid the remaining balance of $237. Then, on October 10, 2019, I received a receipt of payment. Tyler, the FOI analyst, said: “We will now continue processing your request. Your new date is November 19.” On November 12, I then received an email saying that they would need an additional extension. Sure. I did this out of good faith. Then, on December 17, I received another letter from Tyler saying “revised fees,” which totalled $4,710.

In response, I again issued a full fee waiver. It’s the same issue. It’s still in the public interest. Nothing has changed here. They did not waive that fee. They waived a small portion, but the remaining balance was $3,210. At this time, it was January 15, and the day I filed it was July 30. So roughly six months or seven months.

At that point, the partnership agreement luckily had actually passed in its entirety. It was a strong agreement. So I felt kind of like I…. It was passed, and we didn’t have the funds — $3,000 — to pay it. So I just dropped the FOI request because of circumstances. I never really got my answer on what was going on internally, and I never got my hands on those documents.

Those are two times I never got, actually, the documents I was asking for. There were ongoing delays, and it was concerning that the additional costs were added even after I submitted the original FOI request that we worked on together, and the additional fees. It just seemed like not a very good process.

Lastly, this is an ongoing FOI I’m involved in, so I’m not going to talk about it too much. I filed it in August, and the ministry have now given themselves two extensions of 30 days — not asking but telling me that they’re going to take another 30 days. This is for a very, very narrow scope about one specific file being transferred out of a ministry between about three weeks time. So it’s as narrow as you can get with this stuff. Again, they’re just telling me of these extensions.

I’m just sharing these examples with you to paint a picture of what it’s like to be me. I have access to experts. If I need, I can call an expert and get help on it. I have access to people who have done this before. So I am someone who has the support needed to surely be able to file and obtain an FOI request for the actual documents, and I’ve been unsuccessful.

I can’t imagine what it’s like for just a regular member of the public who has a question that they really want answered. I think it’s an incredibly high barrier, and I think one of the changes to have new fees is not really helping that situation at all.

I wrote down some key points, some key takeaways. The duty to document…. I’m wondering why the Environment Ministry FOI came up with no search results. I think that at some point in time, there must have been communication about the lobbying dropped. So this can mean that either the government failed to document, or the files may have been deleted, or my search window was a little bit off. But I would hope that the FOI analyst could’ve helped me rework that if there was some small mistake I was making.

Improving the duty to assist. My experience of going back and forth with a senior analyst with the government was terrible. After almost a year of tweaking the request, writing fee waivers and delays, I still never got records. It’s highly likely that a member of the public would also give up at that time, especially with that new $4,000 fee request.

Fees. As a non-profit, we were forced to drop this FOI, but again, I surely wouldn’t just pay $2,000 of my own money for some records. Government transparency and accountability should not be dependent on the income of a person filing an FOI, and now they’re adding additional fees. I don’t think that’s acceptable.

Then exemption should be requested by exceptional circumstances, not from default. I’ve never had an experience where the government didn’t ask for an extension. I’ve also had multiple experiences where the government tells me they’re taking an exemption and not asking. I think that that needs to change, because extensions are currently the default.

[12:00 p.m.]

Redactions. I think most people in this room would know that when you file an FOI, even if you were to get it back, there’d probably be a large portion of that blanked out. That’s an issue that I’m sure you’re going to hear about from some other people, and I’m going to save it for those experts to talk about the specific issues with the redactions. I know there are going to be a few people talking about that.

Lastly, I think there needs to be a type of culture change in the government that defaults to transparency rather than dealing with every FOI as a scandal. The FOI process should encourage the government to behave ethically, but with all these issues in the FOI process, government is inclined to withhold, delay and avoid sharing documents, which is not why the process was created in the first place.

That’s all I have to say. Thanks so much for listening. I guess we can go on to questions.

R. Glumac (Chair): Well, I’ll start. You talked about three examples. How many FOI requests have you had experience with? You said that it’s commonplace that an extension comes into play. Can you elaborate more on your overall experience?

C. Dawe: Yeah. Those three are sort of the three big ones. When I first started with the Wilderness Committee, a former co-worker, Gwen Barlee, was working on one. Maybe you guys remember the name or know the name.

R. Glumac (Chair): I remember Gwen.

C. Dawe: Yeah. She was really amazing. She was an absolute expert on this stuff. She got her hands on a mar­bled murrelet and a northern goshawk, two FOI packages of draft recovery strategies and ongoing conversations within the ministries.

I’ve experienced going through the redactions, which was…. For content, we probably got, maybe, 10 percent of the package — actually usable things that we could make sense of. Whereas everything else was either repetitions, because it’s just email chain after email chain, or things that were totally blanked out. That’s my experience, actually, with the documents.

Other than that, I’ve filed four other ones, three of which you heard of and one other one that was just kind of like…. I didn’t really find much when I did get the documents back.

J. Rustad (Deputy Chair): Thank you for taking the time to present to us today. I think it’s important we hear from a variety of people in terms of their experience.

I share your frustrations. I’ve never actually put in an FOI, but I’ve heard from many, many people over the years. I’ve been involved in politics for a long time now, and many people have expressed frustration, particularly about the redactions and about the length of time it takes to get responses.

I do wonder…. I’ve asked this same question of everybody who’s presented, so I want to ask you this as well. FOI was created back in an era where we were just bludgeoning into technology — you know, the Internet and all that kind of stuff, right? This was about public information and how you get access to public information. It seems to be now that this is more about restricting access to information than it is enabling, although there is no alternative to getting this information.

I’ve been asking each person that’s presented what the world would look like if all this information was proactively made available, and the rule needed to be what couldn’t be made public. So I’m just wondering, in terms of what that could look like or what you would like to see, if something like that were to be considered as a complete rethink of how public information is accessed publicly.

C. Dawe: Yeah, very good points. If government is considering going a way where decisions are posted and made publicly available…. I think that would default to transparency if that was the baseline assumption, that whatever decision you make, that’s going to be public knowledge. I think that would help our government behave more ethically. I think that would be a really good thing.

[12:05 p.m.]

I overheard some of the questions being asked to the former person. I think she had a good thing to say about…. It would have to be very well organized and well structured. But surely there could be a process for that which would probably then make it so much, actually, less resource-intensive versus getting all of these FOIs, running around to find files, fee waives, extensions, all of this stuff, if the default was to share decision-making information and emails pertaining to those decisions publicly. I think that would help with transparency.

H. Yao: Thank you so much for the presentation. I really appreciate you spending time with us to help us understand the challenges you experience.

I have two questions. I hope you don’t mind. The first question. Based upon the timing you’re talking about, I assume all of this happened sometime between 2017 and 2020 and more of a reflection of…. What’s it called?

A. Olsen: CASA?

H. Yao: I did not say anything like that.

A. Olsen: I can assure you it wasn’t.

H. Yao: I promise you I didn’t say anything about it. I wasn’t even going there, Adam.

I’m sorry. Do you want me to rephrase the question?

A. Olsen: I’m sorry, Henry. I was being rude.

H. Yao: I guess a better way to say it is it seems like there is a continuous pattern of FOI request challenges that has been historical and been long. We need to find a way to really address it, not in the way presented by my colleague across the table.

I do have an interesting question. When you talk about a Cariboo package agreement at $1,000…. Okay, 75 percent off, and at $4,000 retail, you have to pay $3,200, according to your numbers. To me, I find it rather interesting that a fee waiver can be changing that dramatically based upon a percentage, according to your first comment there.

When this kind of stuff happens and whenever people apply for FOI fee waivers, is it usually typically based upon a percentage and the percentages regularly change based upon the adjustment of a project? Or that plays upon an individual’s financial circumstances?

C. Dawe: I don’t think it has anything to do with an individual’s financial…. They would have no idea how much money the Wilderness Committee has or someone else. I think it’s based on, basically, if you can show that this topic is in the public interest and if you can really argue that very well.

In the case for my fee waiver requests, I gave all the reasons why it’s in the public interest. Then I gave about a list of 50 recent news articles about the conservation agreement and said: “People care about this.”

H. Yao: Are you saying, indirectly, by changing the fee and increasing the fee, the ministry is suggesting this is no longer in the public interest?

C. Dawe: Yeah, exactly. I don’t know. I think how Tyler explained it was: “Due to the record of volumes we’ve discovered, we have a new fee waiver request.” I didn’t work on that initial submission for about two weeks — going back and forth, narrowing the scope, getting it just right, to a point where the ministry said yes — to then get fee waived and then get another almost $5,000.

I think whatever happened in that process…. I just don’t think that’s transparency, and I don’t think that’s making government accountability easy. I think it’s defaulting to making it difficult to get records.

S. Chant: I get easily confused. So forgive me.

C. Dawe: Same.

S. Chant: Excellent. Thank you so much for the work you do with the Wilderness Committee, by the by.

My perception is that the $10 fee thing that we’re talking about with Bill 22 and a processing fee are two different things. I suspect the $4,000 was a processing fee, and I’m not saying that makes it right. I’m just trying to put it into a sort of category. You had started the application, and then as people did whatever, something created an increased cost, and it was an attempt at recovery of that cost or something. I don’t know.

That’s a different issue than the $10 fee or whatever people decide is an application fee. So that would be a separate thing that you’d like this committee to think about — how the processing fees, if any, are managed or determined or enacted or waived. Am I understanding clearly?

C. Dawe: Yeah. I mean, a fee is a fee. At the end of the day, it is still money that that person has to pay. I think just the initial $10 is an additional cost someone has to pay, and then also, likely, more costs.

[12:10 p.m.]

I think my examples are trying to show issues with it currently, and if you’re not addressing those issues currently but actually making one of them worse, with the $10 at the start, I don’t think it’s going to help. Ten dollars is a barrier for some people also.

J. Routledge: Thank you for your presentation, Charlotte, and yes, thank you for the work that you do.

The examples that you’ve given…. I’d like to know the answers to those things too. I get asked those kinds of questions as an MLA, and I pursue it with the ministries and with the minister. I guess what I’m wondering…. I think what you’ve highlighted for us in your examples is what may be bureaucratic challenges with regard to this particular process. I’m wondering if it sets up a procedure that is inherently complicated.

I do wonder: did you ask the minister directly and didn’t get an answer?

C. Dawe: Very vague. I alluded to the fact, for the Species at Risk Act, that it was during the time of the caribou partnership agreement.

I was saying what I think happened is that John Horgan saw all of the pushback from industry, got cold feet and walked away. This is, again, me trying to figure it out, because my other ways of trying to figure it out…. I went to an MLA. I tried to ask him. He didn’t know. All George Heyman said was…. What did he say? He’s like: “It’s not always what you think.” That was his answer.

I think something that is…. If it’s in your 2017 mandate to do, I think the public definitely at least deserves an answer of why not. We never got that. I never got that. We were there the whole way until the end. First Nations were consulted too. There was a whole process. I’ve heard it was a struggle for people actually working on the act, because they were so invested in it — to have it just stomped on. I think we deserve answers to things like that. I don’t think I should have to file an FOI request.

A. Olsen: Did you file an FOI request for biodiversity legislation?

C. Dawe: Recently or in the past?

A. Olsen: Was “biodiversity” one of those key words that you looked for?

C. Dawe: No. At the time, it was still “species at risk.” At the time, it hadn’t changed to this new biodiversity legislation, which I know now they’re talking about. If it was under biodiversity legislation….

S. Chant: Couldn’t they just say so?

C. Dawe: Exactly. Because it’s like…. I think that the FOI analyst understood what I was asking for, and I think the ministry knew exactly what I was asking for. If it is about transparency, they would go: “Oh, I know what she means. She means this — what we call a biodiversity law.” It shouldn’t be about, like: “Oh, good. She didn’t say that one word. We’re good. We’re off the hook.” That’s how I feel when I file an FOI request — but duly noted.

R. Glumac (Chair): Excellent. Well, I think that’s all the questions we have for today. I really appreciate the work that you do and coming here today and sharing your experiences with freedom of information. Thank you for your presentation.

C. Dawe: Thank you so much, everyone. Enjoy the rest of this process.

R. Glumac (Chair): With that, members, I think a motion to adjourn….

Is there any other business? No. Okay.

Motion approved.

The committee adjourned at 12:14 p.m.