Stonewalling freedom; The latest ploy by B.C.'s allegedly 'open' government

By Stanley Tromp, Vancouver Sun, 04 Apr 2008




Far from being the most open province in Canada, as Premier Gordon Campbell pledged, British Columbia has become the least open in one sense.

Besides undermining the B.C. Freedom of Information and Protection of Privacy Act in countless ways, including passing regressive amendments and regulations to it, the provincial government has gone a step further.

Now it is attempting to block the publication of records by an FOI applicant even after releasing them, a potential tool of censorship that is invoked nowhere else in the world as far as I can find.

On Sept. 13, 2000, Chris Norman, director of the B.C. government's information and privacy branch (CPIAB), sent an internal memo to all ministerial FOI directors, in which he reported that the attorney-general's ministry had "raised the issue of Crown copyright." CPIAB then met with the Intellectual Property Program "to determine the best method of asserting Crown copyright in FOI releases."

Soon afterward, I was perplexed to receive "notices" slipped inside packages of documents mailed to me in response to some of my FOI requests. These letters warned me that: "These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works is forbidden."

If I wanted to redistribute even a portion of these records, I would have to send a special request (which could be denied) to the IPP, and also pay up. The implicit threat that I could be sued for non-compliance was clear.

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

After several years of this process, I complained to B.C.'s information and privacy commissioner, David Loukidelis, an inquiry was begun, and a ruling is expected.

Yet for the past few months, a low-key but earnest power struggle has been going on in Victoria, for the attorney-general's ministry has tried to shut down the inquiry entirely. Last December it challenged the commissioner's jurisdiction to investigate my complaint, claiming he may only rule on FOI issues but not on Copyright Act matters. The outcome of that dispute is uncertain.

The public and the media have a common interest in confronting this problem, for it may affect our ability to report the news. For one thing, it could affect newspapers that have lately begun posting original government documents, obtained through FOI, on their websites as appendices to their articles.

I could cite hundreds of examples of government records obtained through FOI by the Canadian media or interest groups, which were then published in news stories for the public interest -- reports on the abuse of persons in nursing homes, public health risks, crime trends, hidden pollution and gross misuse of public funds.

It was FOI requests for internal audits by the media, that published them, that eventually revealed the Quebec sponsorship scandal and led to the Gomery inquiry. The government could have claimed its assumed royal prerogative and sent out copyright notices forbidding applicants to publish these records without permission.

The Australian Copyright Law Review Committee report of 2005 stated: "There is great danger in the possibility of government using copyright as an instrument of censorship," and noted it had already been applied in 1996 regarding the unauthorized release of a police video.

Worse, Crown copyright notices are now sent to some FOI applicants but not others, with no discernible pattern. Thus, on copyright lawsuits, because there are far too many FOI publishing "violations" to sue on them all, the government would be able to pick its legal actions arbitrarily, potentially for certain political objectives, and justice applied unequally is injustice. Although such notices have been generally ignored so far, this could change.

This practice appears to be a made-in-B.C. innovation, for the federal information commissioner's office in Ottawa said it had never heard of such letters being sent out under Canada's Access to Information Act. Nor have any of the provincial commissioners under their provincial access laws. After studying foreign FOI statutes and practices for the past year, I was unable to find Crown copyright notices mentioned in any other nation. Indeed, Section 105 of the U.S. Copyright Act says that copyright protection is not available for any work of the United States government.

To be fair, the practice of sending such notices in B.C. began during the administration of NDP premier Ujjal Dosanjh, yet the current Liberal government has chosen to continue it. Free publication of such records was surely the basic intent of the B.C. legislature in passing the FOIPP Act. Such copyright threats might also violate the Charter of Right's guarantee of free speech.

The whole matter was best summed up in a scathing critique by former federal information commissioner John Grace, who called Crown copyright a "repugnant, and perhaps even unconstitutional" practice that "richly deserves to be challenged."

Grace concluded that "Crown copyright by another name is political or bureaucratic control," and he asked: "In the context of Crown copyright, who is the Crown if not the people?"



[POSTCSCRIPT.  The next year, the dispute was resolved, as noted in the letter below:]



Office of the Information and Privacy Commissioner for British Columbia


June 1, 2009


Dear Stanley Tromp:


Complaint—Duty required by Act—Ministry of Transportation and Infrastructure

(“Ministry”) File TRA-06-158—OIPC File F07-31 011


I am writing about your complaint that the Ministry included a copyright advisory notice with its disclosure of records in response to your access request under the Freedom of Information and Protection of Privacy Act (“FIPPA”).


As part of our investigation of your complaint, I had discussions with the ministry responsible for intellectual property within government, the Ministry of Labour and Citizens’ Services. Government has decided to cease including copyright notices in access to information disclosures and has confirmed that, effective immediately and government-wide, copyright notices will no longer be issued in conjunction with disclosure of records in response to access requests under FIPPA.


The Province has advised us, for clarity, that the fact that it will no longer include copyright notices in FIPPA disclosure packages does not change the fact that it “reserves the right to assert and/or enforce copyright in its materials in appropriate cases, including situations where such material is subject to an existing legal obligation of the Province (i.e., a licence) or someone makes copies of something purporting to be the official version of Provincial material, but which is out of date, and distribute those copies to others, thus creating the potential for inconvenience, or worse, to third party recipients of that material.”


I appreciate the government’s willingness to revisit this issue and applaud its decision to change its policy on the matter.


In view of this development, we will be closing our file relating to your complaint. I appreciate your having brought this matter to my attention and thank you for your contributions to its successful resolution.


Yours sincerely,


David Loukidelis,

Information and Privacy Commissioner

for British Columbia