A Question of Privilege – Freedom of Information and Protection of Privacy Act amendments

Oct 20, 2021 | 42-2, Blog, Governance, Legislature, Video | 0 comments

This week the BC NDP government tabled controversial amendments of the Freedom of Information and Protection of Privacy Act.

I have posted my comments at second reading debate (here) about the aspects of the amendment Act that I find most troubling.

As a separate matter I am also a member of the Special Committee for the Review of the Freedom of Information and Protection of Privacy Act. The committee was appointed in June 2021, elected Chairs in August 2021, and is tasked with reviewing the Act including facilitating an extensive public consultation to solicit feedback about how the government should update the Act.

By putting forward an amendment Act while the Committee is still ongoing the government is creating significant confusion and is potentially a breach of privilege of the members of the Committee.

By raising a Question of Privilege I have asked the Speaker to rule on whether the process is appropriate. I await Mr. Speaker’s ruling.

[Transcript]

I intend to speak to the question of privilege that I raised yesterday regarding Bill 22, the Freedom of Information and Protection of Privacy Amendment Act and the Freedom of Information and Protection of Privacy Special Committee that has been appointed.

Section 80 of the Freedom of Information and Protection of Privacy Act, FOIPPA, requires that the Legislative Assembly appoint a special committee to undertake a “comprehensive review” of the act, and that committee must report back to the Assembly within one year of being appointed.
Section 80 requires a time-limited review that once the committee has begun its work, it must report back to this House on a specific date. That date is public information, as is the terms of reference, and, as a result, it sets an expectation that the special committee will be undertaking a public consultation within that prescribed time.

On December 14, 2020, the Legislative Assembly agreed that a special committee be appointed to review the Freedom of Information and Protection of Privacy Act in accordance of section 80 of that act. Members of the committee were appointed with the Member for Port Moody–Coquitlam as the convener and I as the member appointed as the member for the third party.

On April 12, 2021, the first session of the 42nd parliament was prorogued, and the committee was dissolved.

The second session began with a Speech from the Throne on April 12, 2021, and on June 16, 2021, the Legislative Assembly agreed that a special committee be appointed to review the Freedom of Information and Protection of Privacy Act in accordance with section 80 of that act. On August 23, 2021, the committee convened for first time and elected the member for Port Moody–Coquitlam and the member for Nechako Lakes as the Chair and Deputy Chair respectively. On October 18, 2021, the Minister of Citizens’ Services tabled Bill 22, Freedom of Information and Protection of Privacy Amendment Act, 2021, with the most substantive amendments to the FOIPPA in the last decade.

The powers of this special committee are outlined in the terms of reference. They include appointing subcommittees, sitting while the House is adjourned, retaining Legislative Assembly staff to support the work and “conducting consultations by any means the committee considers appropriate.”

This is a serious matter and a breach of privilege of the members of the committee. The Minister of Citizens’ Services’ attempt to amend the FOIPPA while a special committee is currently consulting with the public undermines the work of the special committee. If this precedent is allowed to stand, there is a real threat to all work undertaken by committees, special or select standing, appointed by this Legislative Assembly to complete statutory obligations if the minister moves to amend legislation while a committee is still consulting the public.

The minister has argued that parts of this act need to be amended because the ministerial order is going to expire, and there is a desire to entrench the powers granted in that ministerial order into law prior to the expiration. There’s a remedy that does not include amending the legislation. The government can extend the ministerial order until after the consultation is complete and the committee’s report has been filed with this House.

In 1993, Madam Speaker Joan Sawicki ruled on a matter of privilege. In that ruling, Madam Speaker wrote:

“It is of course a breach of privilege to privately solicit members of a committee when acting in a quasi-judicial capacity or to threaten a member of a committee in an attempt to influence them in the discharge of their duties. In addition, it is the acknowledged practice of this House to preclude and reference in detail to specific issues before a committee prior to the report of the committee or discussion of evidence being presented to a committee, but to allow general reference to a subject matter even though that matter may have been previously referred to a select standing or other committee.

“The rationale of this practice is to avoid any direct intrusion into the functioning of committees which might pre-empt the committee’s activities. The House itself, at the same time, does not totally preclude itself from alluding to a particular subject matter which it has referred to one of its committees.”

Bill 22 is “a direct intrusion into the functioning of committees which might pre-empt the committee’s activities.”

The Parliament of Australia faced a similar situation in 2018 with respect to the Security of Critical Infrastructure Act, 2018. A committee of the Parliament of Australia was tasked with the review of the act, and the government introduced the amending bill. The members of the Parliamentary Joint Committee on Intelligence and Security offered several comments that are applicable in this and to be considered:

“The committee is mindful of its statutory duty to review the operation, effectiveness and implications of the act as required under section 60A of the act. However, the introduction of the SOCI bill and its effective alteration of elements of the act that would be reviewed transformed the committee’s ability to undertake the review.

“As outlined above and earlier in this report, the focus of submitters and witnesses was primarily on the bill, and this required a parallel focus from the committee as well. Trying to review the operation of an act that had not had a number of its key provisions utilized, with a bill to fundamentally amend that act before the committee as well, was a challenging exercise. Ultimately it was an exercise that the committee could not undertake effectively in the face of the overwhelming concern regarding the SOCI bill’s potential impact.

[2:40 p.m.]
“Accordingly, the committee is using this report as commentary on the SOCI Bill with recommendations for change as well as a vehicle for finalizing the statutory review. However, the conclusions of the statutory review are that the shifting landscape that the Bill created did not allow for the statutory review to be analyzed in a way that created an evidence base to meaningfully recommend any change. This is also reflective of the fact that the recommended changes from Bills 1 and 2 will alter the landscape even further.”

The special committee to review FOIPPA is not an open-ended process. The Legislative Assembly constrained the work of the Special Committee to Review FOIPPA to one year ending in June 2022. As a result, there should be no confusion about when the statutory obligations of the committee are complete and when it would be appropriate for the Minister of Citizens’ Services to consider amendments to the act. The House has no knowledge of what is happening at the committee until the committee has reported to this House. The committee has not reported to this House, and the work continues.

I have fulfilled the requirements of the procedure for raising a question of privilege, include transmitting a copy of the motion that I intend to move to the table.

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