Public
funds spent on legal arguments to keep records barred from public
, Vancouver Courier, Feb 1, 2012
The
public may soon be able to read more internal reports about provincial health
services after a ruling ordered them opened up.
A
year ago, this journalist had applied though the B.C. freedom of information
law for summaries of five internal audits from the Provincial Health Services
Authority. The PHSA refused, and an appeal was sent to the information and
privacy commissioner in Victoria.
On
Jan. 19, the commissioner’s adjudicator Jay Fedorak
ordered two of the summaries released in full, and parts of the other three.
(The PHSA has 30 days to appeal the order to court, and has not yet said if it
will.)
Over
the past year, as the basis for news stories, the Courier has used FOI to
obtain audits from Vancouver city hall and the B.C. finance ministry’s
comptroller general. These dealt with topics such as health and safety, and the
wasteful spending of public funds. But now these reports are becoming much
harder to access, because these public bodies have started claiming more
exemptions to keep them secret. The Courier has appealed these withholdings to
the commissioner, and await rulings on them.
“The
PHSA seems to have gone out of its way to throw up anything and everything to
keep these records secret, and they failed,” said Vincent Gogolek,
executive director of the B.C. Freedom of Information and Privacy Association. “They
even tried to give themselves the power to hold board meetings in secret to
justify keeping the records out of the public eye. Hopefully they have learned
their lesson, and will stop wasting everybody's time and resources to try to
block transparency."
Unlike
the five B.C. regional health authorities, the PHSA is responsible for health
care services that must be delivered provincially. From its headquarters at
1380 Burrard St., it oversees the B.C. Cancer Agency, the B.C. Centre for
Disease Control and Prevention, the B.C. Mental Health Society, the B.C.
Transplant Society, the Childrens and Womens Health Centre, and the B.C. Ambulance Service. Part
of a complex network, and with $2.28 billion in revenue for 2011/12, the PHSA
trains 4,000 healthcare students, helps plan the HIV/AIDS program, and seeks to
reduce B.C. health costs by consolidating services, such as research ($180
million annually), chest surgery and trauma services.
Utilizing
lawyers at public expense, the PHSA made its arguments using in-camera
affidavits. Even the audits topic headings were so sensitive, Fedorak wrote, that he could not mention them in his public
order. The authority kept all five summaries secret by claiming exemptions in
the FOI law, that is, releasing them would reveal the substance of
deliberations (under section 12), and it would also reveal advice or
recommendations (section 13).
But
to use section 12, a public body must have a statutory authority to meet in private,
and Fedorak found the PHSA did not have this
authority as it had claimed. On section 13, he wrote that most of the audits
were not made up of advice, but of factual background data instead, so the PHSA
could only withhold some parts, not all of them.
Fedorak
also rejected the PHSAs claim that releasing the audits could cause it
financial harm (section 17) because it lacked proof, writing: “The PHSA makes
merely bald assertions about potential harm that is vague and speculative.”
______________________
POSTSCRIPT
The
PHSA then appealed this OIPC ruling in B.C. Supreme Court and overturned it.