Bill 22: BC NDP government continues to disrespect the Legislative Assembly

Oct 31, 2021 | 42-2, Bills, Blog, Governance, Legislature, Video | 1 comment

A lot has been said about Bill 22 – Freedom of Information and Protection of Privacy Act (FOIPPA) Amendment Act, 2021. It is rare that a Government Bill garners so much attention. Even controversial Bills move through the process smoothly.

Bill 22 is unique because it sets back decades worth of progress on founding democratic principles like the freedom of the access to public information, data, and privacy. Who would of thought that the BC NDP, the party that brought in the first FOIPPA in the early 1990’s, and whose caucus includes one of the architects of that legislation (Murray Rankin), and the party who has “democratic” right in their name, would be the one to undermine it 30 years later.

The entire debate on Thursday featured questions from Opposition Members to Hon. Lisa Beare, Minister of Citizens’ Services, on Clause 1. Only at the very end of the day did we finally vote on the clause.

It is even more rare that I share my comments from the Committee stage (clause-by-clause) of the debate because the exchanges are slow and can drag on. However, in this case, I feel documenting this process is important because Minister Beare and her BC NDP colleagues are eroding our democracy and this Bill must be stopped.

Particularly to Green Party MLA Adam Olsen. While discussing the bill Thursday, in five minutes he went from “irritated,” to “outraged” to “infuriated.” There are still weeks to go. People are terrified to find what comes after “infuriated.” Les Leyne, Times Colonist

It takes quite a bit to get me to infuriated, so if you have some time to follow along with the debate, I will lay it out here.

My first point of contention is that in many respects Bill 22 is “enabling legislation.” The BC NDP rallied against this kind of governing when the the BC Liberals did it, and now they are doing themselves with this information and privacy amendment.

[Transcript]

A. Olsen:

I think it’s important to just acknowledge a couple of things before I ask a few questions here. One of those is that I think back into fairly recent history and remember our colleagues from previous parliaments when they were then on the official opposition side of this House — the B.C. NDP colleagues — getting, I think, very, very irritated by the former government’s use of enabling legislation.

There’s very good reason why our colleagues, who were then sitting on this side of the House, would be irritated by enabling legislation, because what enabling legislation does is it asks the House to approve of something that only we have the authority to approve of before the minister who is moving the legislation forward is prepared to put in front of this House what it is that we’re approving.

It actually undermines and erodes this democracy, which is what the members that were on this side of the House previously, in the previous parliaments said we’d hear so often. For 16 years — for 16 years — we heard it all day, every day here.

But there is good reason to be irritated about enabling legislation, because only the members of this House have the authority to divest some of our power to statutory decision-makers and to other decision-makers within the bureaucracy. That’s what we’re being asked to do here.

We’re being asked as elected officials, and this minister….

[3:25 p.m.]
The public needs to know that this minister is asking the elected members of this democracy to hand power over to aspects of the bureaucracy without understanding the full implication. The Office of the Information and Privacy Commissioner has raised that. Our colleague from Abbotsford South just read the passage on the record. The commissioner himself has said: “Look, there could be dire consequences here to divesting the power or to passing the power on down the line.”

So in this debate, I’ve heard…. In previous debates I’ve heard and seen this government undermine the very aspects of this House that we should be holding and propping up and maintaining in this chamber and in this House. Undermined the committee, the special committee to review this very act. It’s a committee that is struck not by the government, but by this House. All the members of this place passed that motion unanimously to strike that committee. It’s an act of this House, not of the government. The government moves the motion. But it’s our committee to do our work on behalf of our democracy.

The government is treating it as if it’s something that they can just simply ignore. This minister, when asked these questions, has brushed it off as if it’s a meaningless committee that will do work after the bill…. The comment earlier was that the committee should essentially feel lucky that it gets to be the first committee to review the new act. Which is absolutely not the purpose of that committee. It is to inform the process that this government and this minister has decided to put ahead of the process.

The minister has said: “Well, a lot has changed.” Agreed, a lot has changed since 2021. I’m on the PIPA review. A lot has changed annually. That doesn’t mean that we give it less scrutiny by all members of this place. What’s going on here today, what went on with the amendment, what went on with the second reading debate is a result of this minister and that government putting this process ahead of the process where we could gain all-party support for an initiative. That’s exactly what that consensus-building process is in a special committee to review an act.

The turmoil that this minister is facing, the turmoil that her staff is facing with this today is a result of bad process and a government that is snubbing its nose at this democratic House. They’re doing it with enabling legislation which further erodes it. Then the comments that I heard earlier today…. Not only has the minister undermined the authority of this House, the minister has undermined the authority of an independent officer of this House. We should be outraged. Yeah, I might be outraged. I am outraged.

The reason why I’m outraged is because that independent officer is an officer of this place, not of the government. We put together a committee that hires an independent officer, that scrutinizes and ensures that the information and privacy of British Columbians is being properly administered and properly protected. This process undermines that. This minister is undermining that. This government doesn’t care. Snubbed its nose. No speakers. Silence.

Every time that a question has been answered, this minister has responded with a response: “I can’t wait to get to another question, a different question.” Not even honouring the question that is in front. It’s infuriating. It is entirely inconsistent with everything that has been said about enabling legislation in this House for 16 years.

[3:30 p.m.]
Yesterday I asked the minister, on clause 1, a question. The 2010 legislative committee recommended that a section be added to section 2, which is what clause 1 is amending, to require that an infringement of the right to privacy must be proportional to the public interest to be lawful. I said this bill doesn’t do that. Then I asked why. The minister responded that the act as it currently stands contemplates the protection of people’s privacy already. When has this act not contemplated people’s privacy?

Hon. L. Beare:

The recommendation, of course, was considered.

We feel that the overarching principle statement that the member is looking for is embedded throughout the act and through the amendments, as well, strengthening privacy for individuals.

A. Olsen:

The question was at what point did this act not protect people’s privacy?

Hon. L. Beare:

The act has always protected people’s privacy, and we’re strengthening that.

A. Olsen:

That’s correct. The act has always protected people’s privacy.

In 2010, the special committee: “Also considered an amendment proposed by the OIPC” — the Office of the Privacy Commissioner. “It’s submission pointed out that section 2 does not acknowledge that an infringement of the right to privacy must be reasonable and justifiable, whereas this concept is in the Personal Information Protection Act.”

The committee at the time stated they support the amendment because they think it’s desirable to harmonize the language of the public sector and the private sector privacy laws, wherever practicable. Can the minister please identify where in this act this specific recommendation, which is in clause 1, has been achieved?

[3:35 p.m.]
Hon. L. Beare:

While I very much respect the member’s thoughts on this and the committee’s recommendation, which were thoughtfully considered throughout this process, they are two different acts, and we feel that the act already allows for that, and we are continuing to strengthen privacy throughout our amendments.

Irritated to outraged

Following this response I felt it was futile to ask Minister Beare another question on this point as it was likely that she would just not answer the question again and again. The debate continued.

My colleague Sonia Furstenau took over questioning, returning to the process the BC NDP have undertaken on these amendments. As has been reported extensively, the government is deliberately side-stepping the all-party Special Committee (already in place) that is supposed to be reviewing this legislation and opening up a public consultation to seek input from citizens, stakeholders and experts who should be informing any changes.

These Special Committees are important because they are consensus building exercises and when used properly limit the amount of frustration a Minister may feel when the Opposition are forced to use the Committee stage of the Bill to make up for the government’s decision to limit input.

[Transcript]

S. Furstenau:

My colleague for Saanich North and the Islands just gave quite an impassioned speech about process and, in fact, in his discussion of process, he really hits on something that is so central to what these two reports from this government and their stakeholder consultation overviews talk about the public wanting, which is transparent and accountable government.

The reason why process matters so much for achieving these outcomes that the public consistently asks for — transparent and accountable government — is because having clear process and adhering to that process means that people are able to understand decision-making processes, what informed decisions, how governments reach those decisions, what information they use to get to those decisions, what they think those decisions are going to accomplish, how they’re going to measure those decisions and where those decisions get us.

So what my colleague pointed out about the rather concerning and distressing abandonment of good process that has gotten us to this place where we are on I-don’t-know-which hour of clause 1 of committee stage of this bill — what’s being reflected is the members of a Legislature who are quite distressed about the way that process has been abandoned.

The minister has talked a lot about these consultation processes and how the consultation reports are available publicly and, indeed, there are these two reports. There is one from 2019 and one from 2021. What’s interesting is that in response to questions of: what did stakeholders say at meetings? What was heard? The minister says: “Well, it’s all in the consultation report.” But it’s not. These are curated reports that tell a story. In fact, that’s what governments do. That’s what political parties do. They tell stories. You have to own the narrative. You have to stay in the message box.

The role that freedom of information plays is for those who want to go beyond the curated story that is being told by any government at any time. Freedom of information provides the capacity to get beyond what we’re provided in our curated stories and curated reports, to the questions that have been asked today. What exactly was said? Who was invited? How did this process play out? What was the decision-making process? How did we get here? Why are we here? Where are we trying to go? What are the implications for me as a citizen? What are the implications for the wider society?

This is why people are engaged — rightfully so — with government in a democracy, because we want to understand how we’re getting to one place and where we’re supposed to be going. What’s interesting about these reports is that when we look at the 2019 report on what we heard, there were lots of points about, for example, fees. There were some participants…. We don’t know how many. This is the problem with these curated reports. We’re not getting clear information. We’re getting abstract, vague information.

[3:40 p.m.]
Some participants were concerned that fees could discourage low-income British Columbians or not-for-profit groups from making requests. Some suggested fees should either be reduced or simplified. A few participants suggested that no fees should be charged for electronic documents. Then there was this one line: fees could be reduced or simplified, for example, by charging a flat-rate application fee for general requests.

We don’t know if that’s in response to the fact that sometimes you put in a FOI request and you get a notice back from the government saying: “Well, we can fulfil this, but it’s going to cost you $475.” Or: “It’s going to cost you $8,000.” Or, in some cases I’ve heard from journalists: “This is going to cost you hundreds of thousands of dollars.”

Imagine that public information about very important public matters like the movement of hazardous waste in this province and the researcher wanting to know where that waste comes from, how it’s shipped, where it ends up and being told: “We can maybe get you that information, but it’s going to cost you hundreds of thousands of dollars.”

I think in these what-we-heard processes, it wasn’t: “Oh, people are really looking for an upfront application fee.” I think what we could imply from this is people were looking for a…. If you’re going to charge a fee, make it a flat fee, and then give us all the information.

But then we get to the April to August 2021 report, which is very different from the January 2019 report. What I can see is…. The questions are here that the government asked in the surveys. This would be an assignment that I would give to my class about how do you ask questions to get specific kinds of answers and how do you present information to get specific kinds of outcomes. This isn’t in-depth information about what was said in these consultation sessions.

This is highly curated information being provided to the public — a story being told that is quite the opposite of freedom of information. There’s an interesting line here: “While many general FOI requests…ensure that high-value government information is shared with the public, others are overly broad and directed at multiple public bodies.” There is a value statement in this. We get to determine what are high-value requests and what requests are overly broad. “These requests do not typically result in responsive records and, as such, do not increase transparency.” Well, now we’ve drawn a conclusion here.

I’ll start with a question. The minister has talked a lot about the overwhelming number of requests and yesterday indicated proactive public disclosure. She said: “Oh, we’ve proactively disclosed estimates binders, and we’ve proactively disclosed transition binders.”

My question is: of these overwhelmingly voluminous, as she says, requests for information, has there been any effort to analyze the request and proactively disclose based on the requests that are coming in year over year?

Hon. L. Beare:

Thank you for the question.

Yes, we have talked about the overwhelming increase in requests over the past four years. A 40 percent increase is significant.

[3:45 p.m.]
Yes, we do analyze requests that are made frequently for information, which is how we come to decisions like releasing ministers’ binders, for example. When that’s a repeated request and we notice that that’s something that is continually being asked year after year, it’s easy, then, to make those decisions on the side that we should make that available to the public and make it available to absolutely everyone for free, because that’s important information. That process is already starting again, that 40 percent increase in disclosures that we did last year. We’re already looking at what that next batch can be, and we’re going to continue to do that analysis.

S. Furstenau:

Another example of a request would be, for example, the request of a minister’s calendar, which shouldn’t be that complicated. Can the minister tell me why ministers’ calendars wouldn’t be proactively disclosed?

Hon. L. Beare:

Ministers’ calendars are proactively disclosed. Let me read all the disclosure subjects that are proactively disclosed. We have the new subjects, being estimates, notes, corporate transition binders, minister transition binders, deputy minister travel expense summaries, purchasing cards, business transaction account expenditures, and the previous ones where summaries of open and closed freedom-of-information requests, records released in response to freedom-of-information requests, gaming grants paid to community organizations, ministers’ and deputy ministers’ calendars, directly awarded contracts, ministers’ travel receipts, summaries of contracts with values over $10,000, and summaries of alternative service delivery contracts.

S. Furstenau:

In a minister’s calendar, what level of information is included in that disclosure, including, for example, who the minister met with?

Hon. L. Beare:

Ministers’ calendars are subject to the same exceptions as FOI. But I just want to remind the member that nowhere in this act do we discuss proactive disclosure. I am more than happy to have a briefing with the member and would love to discuss proactive disclosure and what the member would like to see as future categories of proactive disclosure. I’d be more than happy to do that.

S. Furstenau:

Just to go back to yesterday’s point that that was the number 1 recommendation from the 2016 committee that reviewed this legislation and made recommendations to this House. If there is such a volume of requests, it would indicate to me, just using my logic, that there is a feeling amongst the public and the press and the opposition parties that perhaps there is information that isn’t available that needs to be available. Given that it is public information, it belongs to the public.

But I’ll go back to my question, because I don’t think I got an answer there. It’s subject to the same rules as FOI. In the proactive disclosure of ministers’ calendars, does that include who the minister meets with?

[3:50 p.m.]
Hon. L. Beare:

Yes, it does. I know the member knows the answer to this question. I also know that the member knows that this is not included in the bill before us right now.

S. Furstenau:

I’ll turn to just a bit more along the lines of the bigger question of this legislation and where we’re at. Again, connecting to the volume of requests for information, the frustration, it does come through in both of these fabulously curated storytelling reports that we have from government on what we heard. Of course, we can’t know if it’s everything that we heard, because we only get to know what is in the report. But as I indicated, that is the nature of governments. They’re in the storytelling business.

But the nature of the press and researchers and engaged citizens and opposition parties and lawyers…. The nature of them is to want to get beyond the narrative, beyond the storytelling. It is they who are absolutely raising the alarm about this legislation.

The concerns that they have indicated, as we’ve gone over several times in these questions from the opposition parties…. I’ll just put it as a higher-level question for the minister. The combination of the volume of freedom of information requests and the response that this legislation has generated publicly, from the 24 groups that the member for Abbotsford West listed earlier, including the Union of B.C. Indian Chiefs, the B.C. Civil Liberties Association, the Canadian Centre for Policy Alternatives, the Centre for Access to Information, the B.C. Construction Association, West Coast Legal Education and Action Fund, independent contractors…. There is a long list of organizations and individuals who have, really, sounded the alarm on this legislation.

On the heels of, as the minister has indicated, an increasing volume of requests for information, has this minister, in her role as Minister of Citizens’ Services, and this government reflected on what story that tells about this government? People don’t feel that they are getting all the information they need to understand decision-making processes, as opposed to the story this government wants to tell about itself.

Just one example. Independently, we have been recognized as one of the most data-restrictive provinces in Canada when it comes to COVID for over a year — for example, the request for disaggregated data for how COVID is impacting groups of colour, different socioeconomic groups. Relentless pressure has been on this government to provide more information in a public health emergency, culminating — I think about a week and a half ago — in a story in CTV from Penny Daflos about dozens and dozens of pages accessed through FOI, most of them blacked out.

There is a story emerging. I wonder if this minister and her government reflect on the story or the sense that this government has become less transparent and more secretive, as indicated by the rising volume of FOI requests and the alarm that’s being raised by these many, many groups.

[3:55 p.m.]
Hon. L. Beare:

I have a very big answer that I want to give the member here.

There are a number of pieces embedded in the question in there, the first being the increase in the volume of requests. I think it’s very, very important that we discuss what that volume is and what that increase is because what we’re looking at is a system that is overwhelmed right now and clogged up right now with a number of requests that are just broad and sweeping that are essentially fishing expeditions. Let me give you an example. When a deputy minister’s office is requested for all emails received for a month, all of them — that’s not looking for government decision-making.

I believe governments need to be open and transparent. FOI was created so that people can have access to their information, that people can have access into government decision-making. Asking for every single email received in a deputy minister’s office is not looking for government decision-making. That’s a fishing expedition is what that is. That’s causing thousands of hours of work across the system.

You know what I want to see my deputy minister doing instead of trying to sift through 6,000 emails and figure out what is important, is non-transitory, what’s transitory, what results in government decision-making? I want my deputy minister focused on serving the people of British Columbia. I want my deputy minister ensuring that Service B.C. is operating at its top function so that people can have access to the service they need. I want my deputy minister focused on getting connectivity out through the province.

Government information on decision-making is what FOI is there for. That is key and critical and foundational to freedom of information, and we are protecting that. When we talk about the volumes, no, I don’t believe that’s a conversation all about our government. I believe that it’s a threefold increase in things like political party requests going from over 1,500 to over 4,700. That is a threefold increase, many of which are fishing expeditions and not actually looking for government decision-making.

I know we’re going to talk about this a lot over the next hours and days, because I believe that it’s critical that we get information in the hands of people who are looking for it in a timely manner and that we provide that critical and fundamental access to government decision-making.

Now when we talk about openness and transparency…. I thank the member for raising this piece as well, because our government is fully committed to openness and transparency. We talked yesterday about my very first action as minister by increasing proactive disclosures more than 40 percent and how we’re already looking at doing more.

Our government has opened the metadata sets that are open to the public. We now have 3,200 open data sets that are available to people, to organizations, to media. We’re proactively publishing information on integrated data projects underway in B.C.’s data innovation program.

We’re consulting with the people of this province on a level that the province has never seen before. We have doubled the amount of consultations under our watch as was previously done. We’re going to be continue to be open and transparent, and we’re going to continue to find ways to serve the people of British Columbia.

Outrage to Infuriated

The BC NDP government have been using variations of these arguments to defend these amendments. However, in my opinion, these points are further evidence of their contempt for the Parliament, proper legislative process, and the role of the opposition and the media in holding government accountable and ensuring transparency.

I could not sit and listen to Minister Beare further undermine our democracy and I spoke in as a direct way as is appropriate.

A. Olsen:

I think that might have been one of the most unfortunate answers that the minister could have provided this House. As somebody who just stood and spoke to our democracy, I feel like I have no choice but to stand again and remind the minister that basically the answer that she just provided demonstrated a basic disrespect for this House, a basic disrespect for the people of British Columbia.

[4:00 p.m.]
The people of British Columbia elect political parties and representatives from political parties to come in here and do a job. People elect a government not to come in here and pass judgment on what information is acceptable to share and what information is not, which is exactly what this minister just articulated to this House.

[S. Chandra Herbert in the chair.]

There is apparently, in the Ministry of Citizens’ Services, a value judgment placed on which requests are acceptable and which are not. The freedom of information is the freedom of information —fishing or specific.

One of the things that should be pointed out to this minister is that when you actually put something specific, you get a response that it’s not available. The way that the freedom of information system has evolved under this government is that if you can’t get a response from a specific request, then you ask a general question. Then you take the response from that general question, and you dig further. You ask the next question and the next question. Because freedom of information — and the minister just demonstrated it in her response — has turned into a game.

We should not be playing a game. There should not be a value judgment placed by the minister responsible for freedom of information as to what is an acceptable request and what is not. Who gave government the power to determine which information should flow freely and which information should be judged as superfluous? Nobody.

It’s the job of the Ministry of Citizens’ Services to facilitate a process that responds in as speedy a time as possible to the requests that are made, passing no judgment on the request that was made. Has that minister…? That bureaucracy has no understanding as to the reason why someone is making a request. It’s none of their business.

When the minister stands up and gives the answer that she just gave my colleague for Cowichan Valley, it turns the frustration that I expressed earlier into — well, it ramped it up. Because it’s not acceptable. This is not acceptable. This minister is showing a complete and total disregard for information in this province. I don’t know what tools are at our disposal to reconcile this, but that answer that was just given to my colleague was completely unacceptable.

No judgment should be passed. No blame should be placed on the members of this House for doing their job and then amending the way they do their job because of the results that they’re getting. I have an individual in my riding that didn’t get it in 30 days, didn’t get it in 60 days and whose FOI response was just kicked to February of next year. It’s a game. This minister is playing a game with this system.

The games were evident this week in this House, with none of the members who seem to be filling the benches now to come and not stand up and speak. Other bills run the clock to the end of the day. Just turning this House into a….

It’s making a mockery of this democracy. Thinking that you can take this process and just turn it into a joke and because people are busy doing things like trying to survive in this world, then they’re not paying attention and so guess what, when they go to get their information that they’re requesting, there’s a judgment passed on it now or we’re waiting for the regulations to be drafted. Because we’ve put in front of this House enabling legislation and asked this place to shut their eyes and vote for it.

I have no question.

Debate continues…

On Thursday evening there was a vote on Clause 1 of the Bill. There are dozens of clauses left to debate. When the vote on Clause 1 was called the vote did not pass because the BC NDP did not have enough Members in their seats to carry the vote. This is despite the fact they nearly outnumber the opposition 2-1. So, the Minister had to call “division” which forces a standing vote on a Clause that it was unlikely there was going to be a standing vote on.

The utter disregard for the Legislative Assembly and arrogance of the BC NDP in this debate is astounding. They have had a majority for exactly one year and they are acting with an air of entitlement that is scary. Bill 22 must be stopped. While a 5000 word blog post is not necessarily accessible, British Columbians need to understand how their government is limiting participation, accountability and transparency.

I imagine I will have more to say on these amendments as we debate the dozens of clauses remaining.

1 Comment

  1. Wendy Warshawski

    As a member of the public I must say that this debate on Bill 22 totally confuses me as did the debates on the OTHER Bill 22 to do with Mental Health. Has Bill 22 on Mental Health being totally eliminated from the debate process???? I suggest that no Bill ever again be given the number 22 as they seem destined to fail. As a tax payer I feel: Bill 22 Mental Health should be assigned a new number and perhaps discussed the same way as what ever bill it is that covers the incarceration’s of underaged persons and Bill 22 information be amended the way You and Sonja request. The bottom line is that the current debates are turning into school type debate contests and are embarrassing.

    Reply

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