Attempting to send the Freedom of Information amendment Act to the committee where it belongs

Oct 26, 2021 | 42-2, Bills, Blog, Governance, Legislature, Video | 0 comments

The BC Liberals moved a motion to Bill 22, Freedom of Information and Protection of Privacy Amendment Act, 2021, to stop the current process of amending the Act, and to send it to the Special Committee that has been established by the whole House to review the Act as per the statutory requirement of the legislation.

The BC NDP are attempting to move the most substantive amendments to this legislation prior to the review by the committee and to be informed by the extensive consultation of the public, experts and other stakeholders. This is an affront to the House, the Members of the Committee and undermines the appropriate democratic process of the Legislative Assembly.

I support the amendment brought forward by the BC Liberals and speak to my opposition to the BC NDP process for numerous reasons.

[Transcript]

I rise today to speak in favour of the amendment that Bill 22 not be read a second time now and that the subject matter be referred to the special committee.

I think I’d like to just start my debate on this part of the work that we’re doing here to highlight that this exemplifies why we have committees — why we have the standing committees and why we have special committees — that undertake the statutory requirements of reviewing legislation. It’s because those all-party committees do the work to round the rough edges of proposals that might come in front of government.

We debate and discuss the issues that are in front of us. We invite people to come and provide evidence. Then we provide recommendations that are made by all sides and all corners of this Legislature to the government in order to craft the amendments of the legislation and to ensure that those changes that can be made to the legislation are informed and that they also reflect the discussion and the debate, the deliberation, that happens at those committees.

So it is, I think, a necessary requirement. Well, not “I think.” I know it’s a necessary requirement of the Freedom of Information and Protection of Privacy Act to do this review, a review that’s underway right now. In fact, one of the unique aspects of this motion to amend is that there is actually a committee, a special committee, that’s sitting right now to refer this bill to.

Normally, when this motion is put on the floor, the member is putting it to a committee that isn’t tasked with reviewing the legislation that is applicable. In this case, there actually is a special committee that’s sitting to do this exact work, so there’s actually a committee that would welcome this legislation as part of that review.

Right now there’s another committee that’s meeting, and it’s the Personal Information Protection Act committee. That committee has been underway now for…. It feels like years, because I’m on that committee, and it started in the previous parliament. Not even a snap election could disrupt that committee work. Well, it did, actually. But as soon as the Legislature resumed, that committee was formed again.

Off we went to determine whether or not we would start the process all over again or whether we would simply pick up the work as it has been left off and continue along. I think we picked an approach in the middle, where we took some of the information that was gathered in the previous parliament and then we continued to do public consultations as the new committee was formed.

[4:25 p.m.]
So what’s really interesting, and why I raise this, is because the way that this government is handling the citizens’ information has been divided into two. When your information is being held by a private entity, we will study that for months. The deliberations will inform the update. In fact, the Information and Privacy Commissioner has been very instructive to us in providing the recommendations as he sees would be fit to manage people’s information when a company is doing it.

When it comes to how government’s holding this information, this government feels that it’s okay to not do any consultation, to not ask any questions, to simply propose amendments and have this House debate them in here without the benefit of public consultation, without the benefit of stakeholders, without the benefit of experts. This is an opposite approach to the one that they’re taking when it comes to private.

When public bodies hold your information, British Columbians, this government deals with it one way. When private bodies control your information, this government will deal with it in a different way. It’s still your information. It’s still the information of British Columbians. There is no reason why it needs to be handled in two separate ways, other than this government has a lack of interest in the transparency and the accountability that they have to their citizens. Yet they will be very, very certain to ensure that the private entities that hold your information will hold it in a way that is accountable and transparent.

It’s a completely unacceptable response to how we manage the information, the expectations that we have for this same information. The information isn’t different. It’s just how this government decides that it wants to deal with it.

What I would say is: let’s deal with the information the same way. Let’s have some consistency. We’re going to study, seemingly for months on end, how a private entity holds your information. The government should, by the same token, provide that same benefit of the study and the same process through the committee that is studying FOIPPA, the public side of this situation.

The Office of the Information and Privacy Commissioner has written a detailed letter — seven pages. I guess this was his attempt to try to right the wrong of being cut out of the process to inform the legislation that we have in front of us — the amending act, Bill 22. This was the only opportunity that the Information and Privacy Commissioner had to inform this bill. It was to write a public letter and put on the record the numerous considerations that he feels that we should have.

I should point out that our Information and Privacy Commissioner is a substantive individual when it comes to information and privacy issues globally. When they were investigating Cambridge Analytica, as an example — the whole Brexit story that people have all heard about — who did they call on? Who was seconded to do this work? The very same Information and Privacy Commissioner that this government is choosing to ignore, the very same person who is an expert on this and who is informing, in fact, the Personal Information Protection Act.

He’s okay. His advice is good to inform that process. But in terms of the process of the public bodies, we’d prefer to cut him out of this debate, not take his advice, sidestep the accountability and transparency mechanisms that this House has put in place and just push it through. Use that majority government that the Premier so desperately wanted to achieve in the last election to push through a piece of legislation that is not in the public interest. The only interest that it’s in is the interest of the Premier’s office and the ministers who have no intention of providing the information that British Columbians own.

[4:30 p.m.]
There are a number of issues that the Information and Privacy Commissioner raised in the letter. Data linking. How are data-linking activities going to roll out? Well, we’ll leave that to regulation. We’ll leave it up to a minister. We’ll leave it up to the ministry staff to determine through regulation. We’ll leave it up to a minister. We’ll leave it up to the ministry staff to determine through regulation. Let’s ask British Columbians about that. We don’t have the opportunity, because this is going to be put into law before British Columbians have the opportunity to be able to comment on it.

Data residency. What do British Columbians think about where their data resides — here, there, everywhere? We won’t know what British Columbians think about this proposed change, because we’re going to make this proposed change before we ask British Columbians, even though we have a committee that’s currently established — it has a Chair; it has a Deputy Chair — ready to go to ask British Columbians this very question. Again, another issue that would be great to refer to the committee.

Privacy breach notifications. What about the nuances that the Information and Privacy Commissioner has noted? Should we have the committee take a look at the impact of privacy breach notifications as an example when it comes to criminal investigations?

Subsidiary corporations. Another issue that was raised by the Information and Privacy Commissioner: leaving it to the discretion of the minister if it’s in the public interest to determine if a subsidiary corporation is a public body. Based on what? I don’t know. Why don’t we refer it to the committee and ask them to investigate this? They have the benefit of time and space to be able to investigate this in the appropriate way that a committee of this House….

I should point out that the committees of this House are committees of this House. They’re not government committees. We all stood…. When we appointed that committee to review the Freedom of Information and Protection of Privacy Act, when we did that work — this is good for the new members of this place to understand — we all did that together. We passed a motion in this place to strike that committee. That is a committee of this House. The work is outlined in the terms of reference, but it serves this place.

What government does when it moves legislation while a committee of this House is still deliberating and has yet to report is disrespect the act of this House. Certainly, as the Speaker noted, the government has the right to move legislation, but that doesn’t mean it’s the correct thing to do or a good thing to do. It doesn’t mean that it’s respectful of this House to do it. Certainly, the Speaker was reflecting on the fact that when there is no other option, the government could do that. But should the government do that? Well, that’s a completely different question and one that I guess is left to ethics.

If you respect this place, if you respect this House, this democracy, if you respect the processes of this place, then you don’t throw that kind of curveball, then you don’t put in front of the Legislature an act which is substantively — the most substantial amendments in a decade — amending a piece of legislation that you’ve already referred to a committee that’s part of a statutory requirement of that act. It’s disrespectful. If it’s not disrespectful, then it’s an embarrassing mismanagement of this House. Either way, it’s inappropriate.

Removal of the Premier’s office as a public body. I don’t know. That seems like a good thing to ask British Columbians. What do you think about this? Should the Premier’s office be a part of this freedom-of-information request process? Why not just cut the Premier out altogether? What do you think about that?

What do the experts have to say? What do the privacy experts have to say? What do the stakeholders have to say? What does the public think about their Premier not having to answer to freedom-of-information requests? Well, we don’t get a chance to ask British Columbians that anymore.

[4:35 p.m.]
If it was part of the same process that we applied to PIPA, the other act, we might’ve put out a survey. We could have asked, specifically: “Why don’t you provide information back on this?” It would’ve been a thoughtful process. We would’ve weighed all of the considerations. We would’ve deliberated on a recommendation. Then, when the Minister of Citizens’ Services moved this legislation forward, it could be reasonably assured that it was in line with the expectations of British Columbians.

Instead, the Minister of Citizens’ Services has said: “I don’t care. It doesn’t matter what British Columbians think. We’re going to move this piece of legislation the way we think it should be, in spite of the fact that we’ve got a committee that is currently doing and undertaking the work that has been approved and, in fact, required by this House.”

Fines for the destruction of records. Well, the Information and Privacy Commissioner suggests it doesn’t go far enough. Again, yet another issue that could be referred to say: “What should the fines be? How expansive should it be? What happens when somebody willfully conceals or destroys or alters a record? What happens in that situation? Should it be any time, or should it be just when somebody makes a request?”

I’m certain that British Columbians would have an opinion on that matter, and it could inform this legislation. Unfortunately, again, the minister and this government, the Premier said: “We don’t care. It doesn’t matter. Move it forward.” Pretend like the committee is going to be useful, reviewing this freshly amended legislation. Try to convince British Columbians that we’re going to open this legislation again sometime in this parliament.

How likely is that going to be? Other than in pure incompetence, a piece of legislation doesn’t just open and close and open and close and amend and amend. It just doesn’t happen that way — unless, of course, a government doesn’t know what it’s doing, and it forgets something, and then it’s got to amend it in a miscellaneous statutes and amendment act. But the likelihood of a government actually opening….

In fact, I think that there was probably even a policy in previous governments to the minister’s. I’m certain that Premiers past have said to their ministers: “You get your amendments in order now, because the likelihood of us opening that piece of legislation up again is small to nil.” I don’t know. I’ve never been in there. But I imagine that a government doesn’t like to open a piece of legislation and make major amendments within the same parliament. It just wouldn’t make sense to managing a House appropriately and to not be just a general embarrassment.

Application fees. I don’t know. When should information be free, and when should it cost something? When is the freedom of information the freedom of information? When are we going to charge British Columbians to get access to their own data — to their own content? I recognize there are probably some that will say: “Well, if you want your own data, you can get it.” Sure. If you want your own personal data, you can still get it. But let’s not forget — let’s not lose sight of the fact here, folks — that all of the data that this government collects is under the ownership of all British Columbians. It’s all of our data.

This government doesn’t get blessed with being in full control over all of us. This is still a government of the people here, I think. It’s starting to look a little Orwellian. But I can tell you that right now we still have an opportunity to fight this, so that’s what we’re doing. This amendment that’s been moved here — to refer this to the appropriate place — is the appropriate act, and people who vote against this are actually speaking against, and voting against, what the Speaker of this place ruled earlier last week. I’ll get to that.

Authorizing public bodies to disregard requests. I remember when this legislation first hit our desks, and we started to flip through it. When you are just giving it a cursory review you think: “Okay, it’s fine, fine, fine, fine.” This one, though — what is this one? What is this, where we are expanding the parameters…?

[4:40 p.m.]
This bill would expand the parameters of a decision-maker to say: “No, you know what? You can just disregard the request. Don’t worry about it. It doesn’t matter what the person was looking for or what their need was. You don’t need to respond to this.”

What does the Information and Privacy Commissioner say? “A troubling new criteria, under which the Privacy Commissioner would be asked to authorize a public body to disregard a request where the responding request would unreasonably interfere with the operations of the public body because the request is unreasonably broad.” I don’t know. Let’s refer that to the public. Let’s ask them what criteria should be in place where the decision-maker that’s empowered with this can disregard that.

These are all questions that a committee actually reviews. This is the reason why we have a committee process. We’ve literally had the Personal Information Protection Act and the Police Act under active review for months now, doing really good work of this House on behalf of this House. All the members that are sitting on those committees are happy to be doing that work because it is productive, quality work on behalf of this assembly.

If not anything, it’s incredibly inconsistent to have those committees doing that work while the government is undermining and eroding the committee structure that we have in place because they don’t want this to be publicly debated. As the Information and Privacy Commissioner said, committee work is essential in encouraging the fulsome public dialogue that is expected when it comes to pieces of legislation like PIPA and FOIPPA, the Personal Information and Protection Act and the Freedom of Information and Protection of Privacy Act.

There is a reason why there’s a statutory requirement for the legislation to review these bills over a period of time: (a) because it’s a fast-moving area and we need to make sure that our laws are up to date, and (2) because it’s the public’s information, not the government on the other side of the House’s information. It’s not their information to be able to determine how it gets shared and how it doesn’t get shared with the people of B.C. It’s our information.

An all-party committee of the House is the only appropriate place to be working up recommendations. Otherwise, we are incredibly vulnerable to a government doing exactly what this government is doing, which is changing the rules midstream. You got a committee? Doesn’t matter.

I can’t imagine how British Columbians can’t look at the other committees that are currently underway and think: “Well, if the government thinks that it doesn’t matter for this committee, how much do these other committees matter?” There’s a huge amount of work done by members of this House, and it’s incredibly unfortunate that this government has decided that it’s going to take this opportunity to undermine and erode the work of this House the way that they’ve done.

This process has given no time for consultation on “the first substantive amendments to the act in over a decade.” Those are the words of our Information and Privacy Commissioner. I think those are the feelings of the media. Those are the feelings of the people on this side of the House. I’m certain that those are probably the feelings of a lot of people that are sitting in the back benches of the B.C. NDP government right now, wondering what the heck is going on.

Nobody said to us, when we signed up to run, that we were going to be undermining access to information in this province. Nobody told me that was part of the promise of a majority government — that one of the first acts in one of the first sessions was to take a sledgehammer to information and privacy data management and access to information. I don’t know. Maybe they did. Maybe that was secretly part of the government’s agenda all along.

[4:45 p.m.]
Last week Mr. Speaker provided advice to this House:

“Once the House has tasked a select standing committee or a special committee with a line of inquiry through terms of reference, the House has no knowledge of what transpires in such a committee or what conclusions or recommendations the committee intends to make in respect of those terms of reference until such a time as that committee reports to the House.

“Respecting this principle and reality, the Chair can appreciate the difficult situation that a parliamentary committee would find itself in if, while it is nearing the completion of a public consultation resulting from a statutory review of an act, substantial amendments to the same act were brought forward for the consideration of this House. It may have a significant impact on the work of such a committee, especially if that committee is required to report to the House within a time-constrained period.

“Parliamentary committees….”

This is a key paragraph. Every member of that government sitting over there, feeling so comfortable in the majority, needs to listen to this:

“Parliamentary committees fulfil an important function within our democratic process. They allow a small subset of members to engage directly with British Columbians on matters that they are tasked with by this House. Committees often do this by undertaking extensive public consultations, which require a great deal of resourcing.”

The type of resourcing, the type of consultation, the type of process that this legislative process isn’t very well equipped to undertake.

This legislative process, the law-making process that we’re undertaking right now, where a bill gets read for the first, the second, the committee, the third time — that’s a different process. It’s one that should come, necessarily, after the deep consultation that this type of work requires, that this subject matter requires, not the upside-down, backwards way that this government is proposing this.

“Ah, I got an idea. Let’s amend the legislation before the committee finishes the work, and then we’ll pretend like we’re an upstanding, forthright, forthcoming government. And when asked a question, we’ll flash our cell phones around in front of a camera for a bit, hoping that the media and everybody else goes for it, hoping that time will pass, hoping nobody will raise the questions, hoping no unfortunate amendments come forward to force us to debate this any longer.” Completely and totally inappropriate.

The Speaker goes on to say: “The Chair appreciates that in certain circumstances, the effectiveness of the work of such a committee could be undermined by the introduction of a bill that relates directly and substantively to the work of that committee.”

Well, I would say that that’s exactly what’s going on here: undermining the work of the committee. Undermining public confidence in the processes of this House. Undermining the public confidence that their government is looking out and protecting their information for their interests, not for the interests of the governing party.

The Speaker provides this: “That is not to say that committee proceedings may preclude the introduction of legislation. There may be unique, urgent or otherwise necessary circumstances that may require the House to act swiftly through the consideration of legislation.”

I’m just going to end my comments by saying this. Nothing in this second reading debate has demonstrated that there is anything unique, anything urgent, or anything reflecting otherwise necessary circumstances that require us to be having this debate. Therefore, there is only one place that this work needs to be happening right now, and that is in one of the committee rooms in this Legislature, the Special Committee of the Freedom of Information and Protection of Privacy Act, where, I should point out, at least one member of this place is benefiting from that committee being struck, with, now, no work in front of it. Completely and totally inappropriate.

Like I said earlier, this government has either decided that they don’t care about the processes of this House, or they lack the competence to align what the right hand, left hand are doing.

[4:50 p.m.]
Either way, the situation that we find ourselves in here today is entirely embarrassing. It is eroding the public confidence in this House, and that is completely unacceptable.

With that, I’m going to take my seat and just reiterate that I will be supporting, wholeheartedly, the motion to amend this legislation to send it to the committee reviewing FOIPPA.

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