Rob Shaw: Watchdog slams government for trying to block Opposition FOIs
Credit to Author: Rob Shaw| Date: Tue, 01 Oct 2019 10:00:55 +0000
VICTORIA — B.C.’s information and privacy commissioner has delivered a sharply critical blow to the New Democrat government for trying to block freedom of information requests by the Opposition Liberals.
The Opposition was seeking any records from 615 political staffers or ministers who may have used their personal email to do official government work. That’s not allowed under the law, but cabinet minister Jinny Sims (the minister responsible for FOI) and others were caught breaking it last year.
Sensing political danger, the government balked at the request. Handing over such records would likely turn up more embarrassing examples of senior officials trying to hide communications on personal devices, and that could lead to a new round of attacks against Sims and others.
So the government deployed a series of time-honoured countermeasures honed by parties of all stripes over the years: Delay, obfuscate, stonewall and, eventually, deploy the lawyers.
That was how taxpayer-paid litigators recently ended up before the independent Office of the Information and Privacy Commissioner, where the 615 FOIs were packaged into one complaint.
The government’s argument had two fronts: That the FOI requests were “vexatious or frivolous,” and that the Liberals had committed a privacy breach by obtaining the personal email addresses of politicians and staffers they’d listed in their request.
Citizens’ Services Minister Jinny Sims is the minister responsible for FOIs.
The commissioner’s office quickly ripped those arguments to shreds in its ruling last Tuesday.
“One of the purposes of (the Freedom of Information Act) is to make public bodies more accountable to the public by giving the public a right of access to records,” wrote adjudicator Lisa Siew in her order. “The use of personal email accounts for government business has the potential to undermine the public’s ability to hold a public body to account since it makes it harder for public bodies to search for and identify responsive records.”
The Liberals gathered the personal email addresses through public LinkedIn profiles and records from previous FOIs, said Spencer Sproule, chief of staff to Opposition Leader Andrew Wilkinson.
“They were all in the public realm but the government wanted to fight,” said Sproule. “It was a laughable argument. And I’m surprised so much in the way of tax dollars have been spent fighting a relatively simple FOI request.
“It’s been more than a year and gosh knows how much money spent fighting this, and you saw the stern rebuke from the privacy commissioner basically agreeing with every single one of our points.”
Government lawyers also pushed a particularly odd argument in the case.
“The B.C. government responds, in part, by alleging the Opposition made the access requests to embarrass the people associated with the personal email addresses at issue,” wrote Siew.
“It says, by including specific email addresses in the access requests, the Opposition appears to be inferring that the government officials named in the requests may have acted inappropriately, without providing any evidence to support such an inference.”
Nowhere in the FOI law does it say the province can deny access to public records based on whether the results might be embarrassing. The default principle of the law is that public documents are public. The onus is on government to prove otherwise. The government’s argument in the case seems to twist the law around so that applicants have to provide evidence to disprove the wild theories created out of thin air by government lawyers.
Siew rejected that argument.
“I am not convinced by the government’s submissions that this was a motive for the Opposition’s request,” she wrote.
“The Opposition identified a legitimate reason for making the access requests. It says that it made the access requests to determine whether public officials and employees have inappropriately used private emails for public business, specifically referencing a provincial minister’s public acknowledgment that she had used her personal email account to communicate with other government employees.”
The Ministry of Citizen’s Services said in a statement it was “disappointed” with the commissioner’s ruling and “considering its implications, and determining appropriate next steps.” Translation: The lawyers are getting ready to grind the case through every procedural loophole they can find.
In a letter sent Friday, the ministry asked for an extension so it can continue to fight the commissioner’s privacy ruling.
The ministry said the Liberal FOIs will cost taxpayers nearly $2 million.
The Opposition made up 65 per cent of all FOIs since last April, at a cost of $22 million to process, said the ministry.
It’s unclear what the cost was for the previous Liberal government to process Opposition NDP requests, but it’s hard to imagine then NDP critics accepting the complaint that transparency is too expensive.
NDP FOI Minister Jinny Sims did not make the decision to fight the Opposition Liberals, her ministry insists.
“This action was taken by ministry staff due to the volume of requests coming in,” the ministry said in a statement. “Minister Sims was not part of the decision-making process; she was informed afterwards about the action the ministry was taking.”
Sure. But if either Sims or the top fixers in the premier’s office didn’t want this case going forward, it would be dead by now.
On the one hand, it’s hard to feel much sympathy for the Liberals. They abused the FOI process while in government. Wrote documents on disposable Post-it notes. Triple-deleted emails. Created an oral culture to avoid writing records. Instituted costly fees that made FOIs unattainable.
The NDP now are clearly delivering a bit of payback.
But whether it’s a preoccupation with revenge, or simply the burdens of power, the NDP seem to have forgotten how it promised for 16 years to make FOI better. The party fought against many of the same tricks it now deploys. FOI fees remain high. Delays are massive. NDP ministers and senior staff have been caught responding to FOI requests with “no records” when records were later found to exist elsewhere — an old scam perfected by the Liberals.
The only conclusion is this: All political parties abuse the FOI process. They fight for access in Opposition, then try to shut it down in government, and keep reversing those positions depending on their role. It’s a merry-go-round of hypocrisy on all sides.
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