Reforms would strengthen privacy law

By Stanley Tromp. Op-Ed. The Edmonton Journal. July 7, 2010

The passage of a freedom of information and protection of privacy law marks the start of a new relationship between citizens and their government, and its great importance is often not fully understood.

Although Canada has not yet done so, at least 40 other nations today explicitly grant the public a right to obtain government information in their constitutions or bill of rights. Since the mid-1990s, there has been a profound shift in the way in which FOI is understood. At first it was viewed primarily as a governance reform, but now, in stark contrast, FOI is globally seen as a fundamental human right.

In Alberta, the Freedom of Information and Protection of Privacy Act came into force on Oct. 1, 1995. It covers over 1,200 public bodies, ranging from the cabinet office to the Head-Smashed-In Buffalo Jump Interpretive Centre Advisory Committee.

The Alberta law was modelled upon the British Columbia FOIP Act. In some ways it is slightly more advanced than the B.C. one, but in other ways less so. Yet the whole ground has shifted since then, for a decade ago we did not have clear global standards that each FOI law could be measured besides, but now we do.

For example, the time limit for responding to an FOI request is 30 days (with a 30-day extension) in the laws of Alberta and other provinces, but the average time limit in national FOI laws is two weeks, and some of those countries have strong penalties for FOI delays, which we lack. The FOI laws of Quebec, the United Kingdom and the United States have a 20-day deadline. In many FOI acts, information must be released in 48 hours if it appears necessary to "safeguard the life or liberty of a person."

The Alberta Act could be amended to prescribe that when a department's response falls into deemed refusal, it loses the right to collect fees (including search, preparation, and photocopying charges). In Mexico's FOI law, if an agency is late in responding, it must gain the approval of the Commissioner before withholding information under any exemption.

Most regrettably, the Alberta Act was amended to block access to ministers' briefing books and to internal audits, despite the fact existing exemptions were already sufficient to prevent harmful information releases. These two grievous errors should be reversed.

'PRIVATE' ENTITIES NOT COVERED

Another serious problem is there is a growing trend in Canada toward contracting out public functions to "private" entities not covered by FOIP laws -- some are, in effect, shell companies wholly owned by government. The law needs amendment to clearly state that any public body, any corporate subsidiary of a public body, and any organization that is controlled by a public body, or receives its funding primarily from public sources, or delivers a public service, should be automatically covered by the Alberta FOIP Act when it is created.

I emphasize that I do not oppose privatization of public functions, per se, only the loss of public transparency and privacy protection that often accompanies it, but should not. Some governments have granted some of their wholly-owned companies exclusions from FOIP laws, claiming they required "special protection" from their commercial competitors. Such claims are illogical and spurious because the Alberta FOIP Act already contains generous protections (such as sections 16 and 25) to prevent such harmful information releases.

ELIMINATE PROHIBITIVE FEES

Regarding fees, it is possible the $25 fee application has discouraged potential FOI requests from very low-income public interest researchers, students and alternative media, and so it should be eliminated. This dampening effect runs contrary to the democratic intent of the Act. Federal information commissioner Robert Marleau advised Ottawa to drop the $5 fee to make an Access to Information Act request because he estimated it cost $55 to process the $5 cheque; the same general principle likely applies in Alberta.

There is no cost to file FOI requests in B.C., Saskatchewan, Manitoba, Quebec, the United Kingdom and the United States. Perhaps the $25 fee was added to block a truly mischievous applicant from filing thousands of frivolous requests for free. But if so, such a case would be too rare to design a general principle upon, and if it did ever occur, the government could apply section 55 to bar requests that are "frivolous or vexatious."

Even worse, in the Alberta Act, section 29, a public body may refuse to disclose to an FOI applicant information that is "available for purchase." I cannot understand why this question has been missed in the law and many discussions on it: " 'Available' at what price?" Is there to be a disregard for the lowest income information seekers?

In practice here, the government could simply charge $10,000 if it wished to as a means of limiting access to a report for some political reason, and the applicant today has no recourse. Some very highly-priced information may be truly in the public interest for readers, for instance, concerning health, safety and the environment. Hence I advise, at a minimum, amending section 29 to allow an applicant to appeal to the commissioner an information sale price of more than $1,000. The commissioner would not make an order on the matter, but could publicly comment on the reasonableness of the price.

MUCH MORE CAN BE DONE

I would finally add that the value of a strong Alberta FOIP Act is better demonstrated than just asserted. Despite flaws in the statute and its process, it is still heartening to see that the Alberta news media and others have at times made effective use of the law.

Imagine how much more could yet be achieved with a FOIP Act reformed up to global standards, and the potential loss if the system would deteriorate with high fees, prolonged delays and overbroad exemptions.

It was well observed by a prominent Albertan, the current prime minister, that "Information is the lifeblood of a democracy. Without adequate access to key information about government policies and programs, citizens and parliamentarians cannot make informed decisions, and incompetent or corrupt governance can be hidden under a cloak of secrecy."

In regards to information access and privacy protection, the government of Alberta made a good start with the passage of its statute in 1994, but much more can be done. By raising the FOIP Act up to the best world standards, legislators can also greatly enhance their democracy, and create a lasting legacy for their constituents.

Stanley Tromp is a freelance journalist. His report on Alberta's FOIP Act, The Hallmarks of Fairness, with 79 recommendations for reform, can be read at www3. www3.telus.net/index100/foi

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FOIP ACT REFORMS

- A legislative committee is currently studying needed reforms to the Act, and today, at 9 a.m., the Information and Privacy Commissioner and the minister in charge of the FOIP process are due to speak to it.

- The meetings can be heard by live audio webcast from the committee's homepage, www.assembly.ab.ca/committees/health/index.html)

THE ACT AT WORK

As a supplement to Stanley Tromp's report on the Act, find summaries of 50 Alberta news stories that were made possible by the Act since 1995 at www3. www3.telus.net/index100/albertafoistories.Subjects as diverse as public health, safety, governmental waste, policing, security, and environmental risks are covered.

Credit: Stanley Tromp; Freelance

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