Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

British Columbia

Access to Information Regime

British Columbia’s Freedom of Information and Protection of Privacy Act was enacted in 1993 and relatively minor amendments have been made since. The Act applies to all provincial government public bodies including government departments, agencies, boards, and crown corporations, as well as local public bodies including municipalities, regional districts, municipal police, school districts, universities and colleges, and designated self-governing professional bodies such as the British Columbia College of Teachers, the College of Physicians and Surgeons, and the Law Society of British Columbia. These self-governing bodies are included under the Act because they perform a regulatory function that government would otherwise perform. Institutions can be added by regulation but can only be removed by legislative amendment. BC Rail, a Crown corporation, is not covered for competitive reasons. Crown corporations are not covered under the Act unless they are named in a schedule to the Act. Minister’s Offices are included in the definition of a public body, but constituency matters of Members of the Legislative Assembly are not covered.

The Act created the office of the province’s Information and Privacy Commissioner, an independent officer of the Legislature who has the powers to monitor the legislation, investigate complaints, review a public body's decision on an access request and order a public body to release or to withhold records. The Commissioner's orders are binding, but requesters or the government can ask for a judicial review of the order by the British Columbia Supreme Court on limited grounds. The Commissioner is subject to the Act and if there are disputes on an access request, the Cabinet must appoint a judge as an adjudicator. The Commissioner has extensive and detailed powers, including the authority to conduct general audits of access or privacy compliance, provide public education, and receive public comments on the administration of the Act.

The law has similar exemptions to disclosure of information as other provinces, with a requirement that heads of public bodies immediately disclose information where there is a risk of significant harm to the environment or to the health or safety of the public, or where the disclosure for any other reason is clearly in the public interest.

Access requests must normally be responded to within 30 working days and a fee can only be charged for specified services related to access to general information (not an individual’s own personal information) where it will take more than three hours to respond to the request, there are copying and mailing costs, and the agency has provided a fee estimate in advance. There is no application fee. The Act allows for a different fee structure to be applied to commercial users but this is not general practice.

A Special Committee of the Legislature reviewed the Act and made numerous recommendations for amendment in July 1999, several of which were contained in a bill which received Royal assent in April 2002. Included in the bill were amendments that:

• require a request to provide sufficient detail to enable an experienced employee of the public body, with reasonable effort, to identify the records sought;
  
• provide that the Commissioner may authorize a public body to disregard requests that are frivolous or vexatious; or unreasonably interfere with its operations
  
• make it easier to add public bodies to the schedule of the Act;
  
• provide for a review of the Act every six years; and
  
• define ‘day’ as not including a holiday or Saturday (effectively making the time limits working days instead of calendar days).

It has been claimed that the B.C. Act is more open than counterpart legislation across the country. While this claim is open to debate, the public right to access information has a high profile in B.C., with the highest number of access requests per capita of any jurisdiction in Canada. The volume of requests has decreased in recent years for some public bodies, but some of this trend may be attributable to an increase in proactive and informal release of information. The government accepts electronic requests for information, although, to date, information has not been disclosed electronically.

Many ministries have established informal and proactive access mechanisms, especially through use of Web sites. Currently there is no directory of general government information published. Unlike many other jurisdictions, the B.C. Government is actively involved in packaging and selling information, which, officials believe, has become an increasingly valuable commodity. So far information brokers have not used the Freedom of Information and Protection of Privacy Act to obtain information for repackaging.

Officials believe the Act has improved record keeping and encouraged better writing practices. Officials also believe the public service attitude towards the Act has generally improved and that the public service has incorporated its requirements into good business practices.

Issues faced in B.C. are records management in general and a lack of understanding about the treatment of transitory records under the Act. Officials would also like to see the adoption of records management legislation and a more modern records destruction law.

Another issue is the need to improve government-wide consistency in the application of the Act, especially in regional offices.

Government officials believe that FOI officers have a difficult job and their presence is often perceived as trouble and additional work for program officials. They need executive support within their public body.

A further concern is the growing use of access to information requests in the pre-discovery stage of lawsuits, an issue that the government is working to resolve with the Law Society of British Columbia.

There is a fairly precise definition of “Ministerial records” and this has largely become an issue of good records management in ministers’ offices.

Under the BC law, the head of a public body can refuse to disclose information if the disclosure could reasonably be expected to result in damage to, or interfere with the conservation of, fossil sites, natural sites or sites that have an anthropological or heritage value, or to endangered, rare, threatened or vulnerable species. BC officials value this provision.

The Commissioner believes the Act is working well and has the right checks and balances. He believes there has been a positive change in the public service attitude towards the Act but there is still progress to be made. A key issue for many departments is resources. Some members of the senior public service are concerned with the cost of FOI and also believe they can no longer write anything down.

The Commissioner sees timeliness as depending on resources, but also on the approval processes in the institution. He sees the most important distinction between successful departments and others as being the quality of decisions on exemptions. He would also like to see more informal, pro-active release of information and modern records management legislation.

The Commissioner’s office is mainly an “adjudicative” body not an “investigative” one. Formal inquiries may, but do not have to, be conducted in private. The office has 90 days to conduct the access appeal process (exclusive of the time for the underlying decision). The Commissioner believes there is value in having time limits for inquiries and, in his view, 90 days provides ample time to conduct effective mediation. He believes that further time should be allowed for the formal inquiry process, however.

Where documents are alleged to be outside the scope of the Act, the Commissioner’s “portfolio officer” will look at them to ascertain their nature, but not read them in detail. Alternatively, the department can sometimes file an affidavit to satisfy the Commissioner.

About 92 percent of access appeals are resolved though informal mediation by the portfolio officers without the need for a formal inquiry and order making. At the end of his/her work, the mediator gives an opinion to the applicant and the institution on the probable outcome based on precedents and case law. The Commissioner is not involved at all in the mediation or fact finding conducted by his office. The Commissioner believes that the process is exceptionally successful for two reasons – the high quality of the staff and the fact that there is the threat of a formal order.

If the applicant or institution refuses to settle, a notice of inquiry is issued and the parties submit legal arguments and evidence to the Commissioner. A binding order results. Oral hearings are rare, as an inquiry is usually conducted through written submissions. The Commissioner has subpoena power but has never used it in eight years. Inquiries are not focussed on wrongdoing or the conduct of public servants.

The Commissioner’s decisions are put on the Web. They provide guidance to applicants and institutions. About 3 per cent of orders are currently challenged in court – usually on issues of interpretation.

The Commissioner does not believe that monetary penalties against public bodies are desirable. He does, however, favour incentives for accountability such as making compliance with the Act part of management’s performance appraisal and remuneration. He believes there should be included in the Act a duty for requesters to focus their requests and routine disclosure should be encouraged as much as possible. Tips for applicants and public bodies should be published on the Web.

All officials and academics we met support the order-making powers given to the Commissioner under the Act which, in their view, speed up the process, reduce costs for applicants and lessen the need to rely on political persuasion. They also believe the power of the Commissioner to examine all records under the Act is a very important tool. Officials say though some tensions are inevitable, the government’s relationship with the Commissioner is generally positive and there is a good track record at achieving settlements.