One journalist’s failed (so far) efforts to reform B.C.’s FOI law

Stanley Tromp’s recommendations have been ignored by successive review committees

By Vaughn Palmer, Vancouver Sun columnist November 17, 2015


While the B.C. Liberals are required by law to periodically appoint a legislative committee to review the province’s Freedom of Information law, those reviews tend to bear no fruit because government is not bound to implement the recommendations.

The lack of an enforcement mechanism lends an air of hopelessness to the proceedings, as was readily apparent when investigative journalist Stanley Tromp addressed the last review in early 2010.

“I spoke to B.C. legislative committees reviewing the FOI law twice before, in 1998 and 2003, yet no major positive amendments resulted from those reports,” declared Tromp at the outset of his presentation to the government and Opposition MLAs on the committee.

“Although I believe you mean very well, can you provide any cause for hope that the political results will be different this time?” Tromp challenged. “I wonder if I might have to return in five years again to plead all the same points.”

The date was Feb. 2, 2010. Just three months short of the six-year anniversary of that presentation, Tromp was back in front of the latest iteration of the committee, with a progress report that was as dismal as it was predictable.

He began by re-tabling all 67 recommendations for improvements in the legislation that he had presented to the previous version of the committee back in 2010.

“None were implemented since then — not one,” Tromp advised. “As well, the best recommendations of the first three FOI review committees were shelved by premiers and cabinets and never acted upon.”

Enough to turn an access-to-information maven into an embittered cynic. Still after a long engagement with FOI — “my life’s main work for the past 20 years” — Tromp prefers to style himself as a “political idealist,” albeit with a dose of realism.

“With Canada’s ineffective FOI laws, we can produce far fewer FOI news stories than the American press does. In fact, I often use the FOI laws of Washington state. The contrast in service with B.C. is like night and day.”

All by way of underscoring *the shame of a province that two decades ago, under the New Democratic Party government of then-premier Mike Harcourt, produced what was regarded as model legislation for access to information.

The years since have seen a steady erosion of access coupled with the don’t-write-it-down and delete-it-if-you-do practices that are the hallmarks of oral government. Those evasions began under the New Democrats but have been expanded in ever more creative fashion under the B.C. Liberals.

Among current abuses, Tromp highlighted for the committee what he regards as the three most pressing needs for legislative fixes.

One was a written into law as a check on oral government, namely the much-recommended by Information Commissioner Elizabeth Denham “duty to document” key government decisions.

He would also tighten the legislative exemption allowing government to withhold any and all “advice or recommendations developed by or for a public body or minister,” including the facts and analysis assembled in the course of crafting such advice and recommendations.

“The most widely misused section of the act,” Tromp called it, particularly after a court decision that licensed the broad interpretation favoured by cover-their-butts bureaucrats.

“Officials use the policy advice exemption in practice as a de facto, all-purpose master key that can lock up almost any FOI door, or a catch-all net hanging beneath all the other exemptions “

His third recommendation was for information access to be extended to corporate spinoffs of government agencies, crown corporations and publicly funded universities, ending the much abused regime of secrecy around such entities.

Drawing on the considerable research compiled on his Canadian FOI resource website, Tromp noted that such extensions were already a legislative feature in jurisdictions as diverse as the United Kingdom, South Africa, India and — ahem — the Islamic Republic of Iran.

“I’m well aware that Iran has dreadful human rights problems and I would not wish us to endorse it as a model for anything else,” added Tromp. “My point is just to show that overall standards have risen to such a level that even that republic endorses the principle, along with advanced democracies.”

Being under no illusions that his recommendations might be destined for the same ash heap as earlier versions, Tromp nevertheless noted how the current review was conducted against a backdrop of heightened public awareness of FOI abuses.

He’s right about that. A little over a month ago, the committee was drawing so little interest that its Liberal MLA chair, Don McRae, put out a public appeal for submissions. Then came the Oct. 22 report from information watchdog Denham, with its top-to-bottom lambasting of the Christy Clark government for failing to respect its duties under the act.

Suddenly the committee was launched to the forefront of government damage control, with Premier Clark and Liberals seeking its recommendations on the duty to document and other reforms.

But “there’s no need to reinvent the wheel,” as Tromp noted in his presentation. “The current premier based her leadership campaign on open government and transparency. Now is her chance to demonstrate it.”

The committee record already includes ample advice and recommendations on the necessary reforms. All that is really needed to complete the process is a demonstration of political will.


Dark picture painted of B.C. information laws

By Les Leyne, Victoria Times Colonist,  November 10, 2015


British Columbia’s information and privacy law has been formally reviewed by a legislature committee three times in the last two decades, and the job is usually done far from centre stage.

But the fourth review is now underway, with freedom of information as the hottest topic in the legislature. There’s been a concerted attack by the Opposition on numerous falldowns when it comes to responding to FOI requests. Wholesale deletion of documents considered “transitory.” Responses coming back blank under suspicious circumstances. Staff in one office denying they sent emails while recipients in another disclose pages of them.

There was also a sharp report from the information and privacy commissioner that condemned the government’s handling of such requests five different ways.

Add in the fact some of the requests involve sensitive issues, such as the missing women in northern B.C. and the fiasco over the mysterious firing of eight Health Ministry workers, and freedom of information is much more top of mind than it usually is.

There were 15 presenters to the committee on Monday at a hearing in Vancouver. Freelance reporter Stanley Tromp had more than a passing familiarity with how public bodies are responding to their obligations under the law.

He uses the law every day, and most of his reporting involves information obtained through the hundreds of applications he files. He has shared his views at all the previous reviews because FOI in B.C. has been “my life’s main work for the past 20 years.”

It must be a particularly frustrating journalistic niche, because FOI in Canada lags far behind other countries, as Tromp wrote in a book seven years ago.  “With Canada’s FOI laws, we can produce far fewer FOI news stories than the American press does,” he said. He told MLAs the difference between FOI in Washington state and B.C. “is like night and day.”

Those untold, untellable stories are a world of lost opportunities, he said. Even though the withheld records are all bought and paid for by the people who are being denied access to them — the taxpayers.

Tromp’s overall presentation had the air of futility about it. The last time around, he gave MLAs 67 recommendations for reform. “The reason I have to reattach them again is that none were implemented. Not one. As well, the best recommendations of the first three FOI review committees were shelved … and never acted upon.”

He had three areas of concern this time around:

• Policy advice. The Section 13 qualifier that protects advice or recommendations developed for a cabinet minister from FOIs is the most widely misused provision, he said. As interpreted by the courts, it heightens secrecy and amounts to a “de facto, all-purpose master key that can lock up almost any FOI door.”

Although there’s a public-interest override elsewhere in the act, Tromp said Section 13 is a bureaucratic override that’s used hundreds of times more often. He wants it drastically curtailed.

• Shell companies. Over 20 years, Tromp said public bodies have created shell companies to do big business, while exempting them from FOI law. The 1990s saw B.C. Hydro’s abortive investment in a Pakistan power project through a subsidiary, and the fast-ferry fiasco, which was handled by a subsidiary of B.C. Ferries.

More recently, the Vancouver school board had some overseas ventures, VANOC ran the 2010 Olympic Games free from FOI, B.C. Hydro runs an export arm and the University of British Columbia has real estate and other spinoff ventures, all exempt. Tromp said any company with 50 per cent or more public entity involvement should be subject to FOI.

• Oral culture. Minutes are no longer kept at public-entity meetings, he said. Officials don’t write anything down, following the Dobell Doctrine, named after former deputy to the premier Ken Dobell, who said: “I delete my emails all the time, as fast as I can. I don't put stuff down on paper that I would have 15 years ago.”

Tromp said record-retention law needs tightening up.

Just So You Know: On the issue of secretive subsidiaries, Tromp said even the Islamic Republic of Iran, no model of human rights, has FOI law that on paper is broader in scope than B.C.’s. So does Russia.