Bill 22 – When the Freedom of Information is not free

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

On Monday the BC NDP government tabled highly controversial legislation to amend the Freedom of Information and Protection of Privacy Act (FOIPPA).

While their Members are standing and downplaying the impacts of the legislation on the access to information and government transparency and accountability.

As we investigate the changes in this amending Act to the current FOIPPA they include a fee (proposed to be $25.00) for making a request for information, removing the Premier’s office, allowing information and data to be stored outside British Columbia and Canada and other amendments.

There has been an overwhelmingly negative response to the proposed amendments by FOI and privacy watchdogs in addition to criticism over the process.

While I speak generally about the proposed changes in this speech I focus mainly on the process. I was appointed this summer to the Special Committee to Review the FOIPPA and host public consultations. This amending Act is disrupting that consultative work and is either an embarrassing oversight or an intentional act to undermine the work of the Legislative Assembly.

[Transcript]

I appreciate the opportunity to speak to Bill 22, the Freedom of Information and Protection of Privacy Amendment Act.
It seems like there are some challenges that this government has with bills numbering 22. I seem to remember going back, just over a year ago, that there were challenges with another Bill 22 in which, actually, the process…. I know that you want me to speak, Mr. Speaker, to this Bill 22. However, I think that drawing the comparison to the previous bill is an important one, simply because what we see with this bill is the Information and Privacy Commissioner coming out and speaking very, very strongly and very quickly, raising concerns about the process, raising concerns about the content and raising concerns about what this means for the future of freedom of information in this province.

Similarly, we saw the same kind of response from independent people of this House, as well as external groups, with the previous Bill 22. That process for that bill didn’t proceed, just as I hope that, at this point, the process for this Bill 22 also does not proceed.

It’s not just Michael McEvoy, our independent Information and Privacy Commissioner, who has come out and spoken strongly with concerns, calling this bill exceedingly troubling and saying that government is effectively asking the Legislative Assembly for a blank cheque to eliminate the current restrictions on public bodies accessing and storing people’s information outside of Canada.

But it’s also the executive director of the B.C. Freedom of Information and Privacy Association, Jason Woywada, who says that the legislation falls short, calling it “a missed opportunity, and in key areas, the wrong direction. This government keeps saying one thing and doing another. They say they support greater government transparency, but then introduce proposed legislation that leaves major gaps in our existing law unaddressed.”

Our colleagues have done a very good job today. My colleague from Cowichan Valley did a very good job today outlining the extensive work that committees have done — the committees to review this legislation — as a part of the requirement of the legislation is to review it on a regular basis. Other members of this House have done a very good job of outlining the recommendations that this government — and indeed, former members of those committees who still have seats in this chamber — have ignored. A long list of recommendations.

In fact, actually, I wouldn’t want to lead anybody to believe that there are too many recommendations that were left by those committees to implement. Maybe that’s the reason why this amending legislation ignores the fact that the committee work of the past has left some very specific and detailed recommendations for government to implement, whether it be the previous government, which we’ve heard so much about, or this government, which we’ve also heard so much about. It doesn’t really matter.

I agree with my colleague from Cowichan Valley, who says that we are just, indeed, the caretakers, so we have a current role in this parliament, as members of the opposition, to ask these questions and to demand better from government than there was before.

If we take the approach where we can learn from the mistakes of previous governments and build towards creating a Legislative Assembly that’s more responsive, that’s more accountable, that’s more transparent with information…. If we can achieve that, then we are, in fact, moving forward through time, rather than just staying in one place, which it appears that this debate does.

[6:00 p.m.]

It’s just kind of like playing tennis with a ball, hitting it back and forth. They’re bad. No, they’re worse. They’re worse. No, they’re bad. The debate in this House then just deteriorates into meaninglessness, frankly.

I think that it’s really important to acknowledge the work, as others have mentioned. I want to talk about the work of committees as well, because it has been some of the most rewarding work that I have participated in since getting elected here into this place in 2017. It is the most collaborative work. It’s where, I think, the sides of this Legislature break down and where we can have debate, where we can have discussions, where we can find common ground. It’s been a very, very rewarding experience to sit in committee and recognize that actually, there is, on many, many issues — maybe not most issues, but many, many issues — little difference in the positions of the members of this place.

It’s not until we sit in these seats in this configuration that we then start to play the political games and the partisan games of pretending that there are great amounts of differences in how we want to approach these things. There isn’t, really, and that is what is found. Anybody who wants to listen in on a public committee meeting will hear how Chairs and Deputy Chairs and members call each other friends and refer to each other as colleagues and look to build each other up, rather than what so often happens in this chamber, a process of tearing each other down unnecessarily.

We still represent this wonderful place that we live in and the wonderful places that that 87 seats in this chamber represent. So when we ignore — when the government that’s represented in here ignores — committee recommendations, what it does is work to undermine and erode the good work that committees do. If the committee members go in and believe that their reports that they write after expending a considerable amount of time and energy out of their schedule, time that could be taken up doing constituency work or could be doing other work that we have here as MLAs, then they’re not going to expend the amount of energy and resources that are necessary to do good committee work.

If the public doesn’t believe that the recommendations of a committee are going to be taken forward by government and implemented, then why would they participate in the committee process? All we get out of that entire situation is an erosion of our democracy. It’s an undermining of the very place that we work every day. None of us can afford — especially now, where we’ve seen so many challenges to our democracy through COVID and an erosion of our democracy — the impact of snap elections and making people feel like “here we go again, another election for seemingly no reason,” eroding the public trust. This bill takes a further swipe at that and further erodes the public trust.

If what we see and what we hear in the debate here is that 2020 recommendations were ignored and 2016 recommendations were ignored, people will start to not want to participate in a process in which the outcome is just government moving on with whatever their agenda is at that particular time. The most unfortunate comments that I’ve heard and seen in the media are from the minister who’s responsible for this bill, suggesting that one of the reasons why it’s on the table is because members of one side or another use it too often, too frequently — overwhelm. Those are comments that I think are really unfortunate.

It is the role of the opposition, of course, to get information and to ask government questions. We want to make sure that we are in this place, building up the confidence of the work that we do in here, not undermining and eroding it, and making sure that everything we do is toward that.

What my worry is…. I’m on a couple of other committees here, where we’ve spent a considerable amount of time working towards what I believe will be comprehensive, thoughtful, engaging recommendations on two very important pieces of legislation that deeply impact British Columbians.

[6:05 p.m.]

It would be an absolute tragedy if, at the end of that process, the ministers responsible for that legislation say: “Thank you very much. Have a nice day. Not really interested in your work. Going to do whatever we want anyway.”

Unfortunately, that’s what the debate around this bill is starting to paint the picture of: a government uninterested in the work that their peers, their colleagues, do in this place and that’s just going to push forward with whatever they’ve come up with on their own. Part of what is, I think, really establishing that as the reality here — as we’re debating Bill 22, the Freedom of Information and Protection of Privacy Amendment Act — is that one of the committees that I’m currently on right now is the Special Committee to Review the Freedom of Information and Protection of Privacy Act.

This was a committee that was struck last December. It was a committee that was struck again this past summer. On June 16, the Government House Leader moved the creation of the special committee. The government appointed members to the committee. They gave the committee powers to create subcommittees. They gave the committee powers to conduct public consultations. They asked the committee to report back by June 2022 — basically, one year from when that committee was struck.

One of the most important aspects of that committee work, of course, is opening the discussion up for British Columbians, in a very public way, to contribute to the improvement of the legislation — whether it be stakeholders who have a special interest or a special understanding of the legislation and how it applies to them, or whether it be the public who are just engaging with the legislation for the first time, have some interest in it and want to provide some comments.

What I’ve learned in the committee process is that there is a wide range of people that engage in that process. They engage in it for a variety of different reasons. What this government is doing by moving this legislation forward now, in the way it has been moved forward, is they’re undermining the process that they created. I have to ask the question. Either it was a move to disrespect that process, or it was just simply one part of government not talking to another part of government.

We have a process in which the Government House Leader strikes a committee, and then a minister and a ministry are just moving ahead with legislation on their own. The picture that it paints for British Columbians is that this government is clumsy and uncoordinated. What are we to debate or to discuss now in this committee? How are we to believe that this government is going to open this legislation up in any major way, other than maybe minor amendments through miscellaneous amendments bills, in the future?

We’re going to get through a process where we have to report back. Frankly, we’ve already burned a quarter of a year without getting into the meat of it. That makes no difference. The committee is sitting; the members have met. Yet here we are, debating legislation, much of which, as my colleagues in here have pointed out, is very controversial. Aspects of this, we could get thorough public input and comment on and give good-quality, non-partisan direction from this whole House to government. Instead, now we have to maybe have a discussion about information that has just been amended, if this government has its way and uses its majority to just push this legislation through, despite all of this effort that we’re putting into it.

This is really a test for those backbenchers of the government side of this House, really, when it comes down to it. Maybe they will take the opportunity that is afforded by this lengthy second reading debate to actually go through and understand the implications of this legislation that they’re being asked to stand in support of. I hope they do, because the reality of the impact of this legislation is not minor, just like the work of the committees is not minor.

[6:10 p.m.]

It’s not just the members of this Legislature that have to meet on a regular basis to do the work. It’s not just the members of the public who have to prepare their comments to the committee, but it’s all the other parts of the apparatus of this place that also have to ramp up their support for that committee work.

So it’s not just disrespectful to the members that have been appointed to the committee, but it’s disrespectful to the staff of this Legislative Assembly. It’s disrespectful to the Clerk’s office, which has to put research staff and Clerk staff on that committee. It’s disrespectful to our friends at Hansard, because they also have to put people…. When government calls a committee, everybody else has to find a way to make it happen for us.

I deeply appreciate the fact that when government calls a committee, the staff of this Legislative Assembly make it happen. Nothing could be clearer than when COVID hit and we had to make it happen, where they had to make it happen and they did. But it’s not something that we should just take for granted, and it’s not something that we should think is light work. It’s an effort, and it’s an effort that must be respected. This process, moving a piece of amending legislation in the middle of a review by a special committee, is disrespectful to the entire process.

I want to make some comments with respect to arguments about one party using this more or one individual using this more. I just want to really, I think, agree with and emphasize the comments that my colleague from Cowichan Valley made.

The reality of proactive disclosure, the reality of putting the information out and being transparent at the front end, really, I think, allows for us on the opposition benches and allows for the media and allows for the public to be able to do the job of holding their government accountable. It’s a democracy.

We don’t elect members of a government to then just rule us without any accountability for the next four years, until we have the benefit of yet another election. That’s not how this should work, but that’s how this looks.

This looks like the government doesn’t like having to answer questions. The government doesn’t like having to be able to be held accountable for the decisions they make. The government doesn’t want to talk about the process, with how they arrived at the decision that they made. So they tighten up the information that is not their information. They are stewards of that information and they must be able to make it available to the public, freely.

That’s not what’s happening in this legislation. Freedom of information is not free. There is a charge for it. There is a charge for people to get information about the operations of 2,900 government bodies.

The government says that they did a consultation of those 2,900 public bodies covered by this legislation. They’ve called it deep consultation, good consultation, or whatever the language was. Then on the Engage B.C. website, over 75 organizations participated. So 2,900 public bodies are covered by this legislation, 75 organizations participated, 1,700 individual responses to govTogetherBC and 800 individual responses to the Ipsos survey.

I think what’s important to acknowledge is that there were two key themes that were canvassed in that. One was service modernization and the other was privacy enhancement. Nowhere was there a conversation about transparency. In fact, the people and the organizations that have reached out to us were shocked that this legislation came forward, based on the fact that there wasn’t a detailed conversation or request for information on transparency.

[Mr. Speaker in the chair.]

I think it’s important to also acknowledge the impact that the removal of data residency, data sovereignty, could have for British Columbians. I think that it’s safe to say that for the data that we create in here, we take every effort to store it here in this country.

[6:15 p.m.]

Why? Why do we do that? We do it because then our laws apply to it.

I think that before government and before the backbenchers and the members of the NDP caucus stand up to unanimously support this, they need to carefully consider and think about whether or not they’ve asked enough British Columbians if this matters to them, whether or not the 75 organizations, the 1,700 individuals, is a fair representation of British Columbians. Because I can tell you the committee work would have been a much better way of being able to gauge, over a much longer period of time, in a much more detailed and thorough way, whether or not British Columbians are okay with this change.

So here we are in August. Government’s proposed it. I would imagine British Columbians wouldn’t…. I can imagine some British Columbians are going to be confused, because some of them might be getting ready to make comments about this to a committee. Now they’ve found out that, well, that process isn’t going to be available to them. Or it could be available to them, but what’s the point? Now the government’s just changed it. Now the comments will have to be: “Well, we need to change it back.” It’s just sloppy and uncoordinated.

If the government wanted to or needed to make changes because of timing — which was one of the arguments, that there are aspects of this under a ministerial order that need to be changed because the ministerial order is going to be expiring soon — fine, fair enough. Extend the ministerial order. Expedite the process of the committee. Ask the committee to focus on that part of it because there’s a time sensitivity to it.

Don’t make the change and then use some excuse that, well, we needed to rush this through in the fall session, prior to asking these questions and getting detailed responses from the public through the regular committee process, which has been a regular process in 2010, 2016, 2021. Now it’s going to be a conversation as to whether or not those need to be removed.

The final thing that I want to talk about today is just going to be around section 27 of the legislation. This is one that I think also…. I ask my colleagues on the government side of the House to really take a look at exactly what the minister and the ministry is asking them to approve here, with the power to authorize a public body to disregard a request.

I’ve asked some questions about this, but I’m very, very concerned that the expansion of this power…. The commissioner already can authorize a public body to disregard a request, but what this legislation is doing is expanding the scope under which that commissioner may consider that request.

I’m not going to get into a bunch of examples of what those requests might be, but what I will do is invite my colleagues to think about that themselves, to consider all of the different requests that might come to just disregard a request in this freedom of information.

I think what we need to be leaning much more towards is that recommendation that my colleague from the Cowichan Valley was talking about, and that was making public information proactively publicly available, rather than expanding the scope by which a commissioner may allow a public body to just disregard a request and then leaving it up to the commissioner to determine whether it’s frivolous or vexatious.

There is already some of this authority, but what this government has done in this legislation, without consultation, without the discussion that would normally happen in a committee, is say: “Okay, we’re just going to expand those powers.”

[6:20 p.m.]

To me, like my colleague has mentioned previously earlier today, I have very serious concerns about what is being proposed here. I have very serious concerns about the timing of when it’s being proposed, especially in the context of the fact that I and other members of this Legislature are part of a committee that should be doing work exactly on these topics, asking these questions, finding out the advice of the people of this province so that then we can create recommendations that inform the minister so that the minister can draft legislation that reflects the wishes of the public.

That’s a quality-functioning democracy, not the backwards approach that’s happening here. Appoint a committee. Appoint it again. Meet to appoint a Chair and a Deputy Chair. Then bring major amending legislation in, in the middle of that process. Right in the middle of that process. We have until June 22 of 2022 to bring those recommendations back.

Not only do you undermine the work of that committee, but you undermine the confidence of people that their government is functioning in a way that makes sense, because none of that process makes any sense at all. What it does is, it indicates that the component parts of this government are simply not communicating very well with each other. That’s just embarrassing, really.

With that, Mr. Speaker, I thank you for the opportunity to speak to Bill 22. We’ve got a lot of questions coming in the committee stage of this debate. With that, I’ll take my seat.

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