By Andrew MacLeod for The Tyee.

For two years leading up to the May election, the government of British Columbia regularly broke its own law for responding to freedom of information requests, a report from the province’s information and privacy commissioner found.

“Overall, I am frustrated to see that government routinely operates in contravention of B.C. law,” acting commissioner Drew McArthur wrote in Timing is Everything: Report Card on Government's Access to Information Responses.

The report examined responses made during the two-year period that ended March 31. It found that in one out of five cases, the government failed to meet the deadlines for responding that are legislated in the Freedom of Information and Protection of Privacy Act.

Freedom of Information Seriously Suffered Under BC Liberals' Last Years: Report https://t.co/TmiI876FVz #cdnfoi #bcpoli @bcliberals

— DeSmog Canada (@DeSmogCanada) September 25, 2017

“I cannot consider an 80 per cent success rate to be satisfactory,” McArthur wrote. “The government needs to accelerate its recent progress in improving timeliness toward the goal of total compliance.”

The poor response rate was despite a 75 per cent increase in the number of requests made to his office for extensions, he said. “Time extensions under FIPPA are intended to be the exception rather than the norm, as each extension delays providing results to the applicant. Ministers need to prioritize responses to access to information requests.”

The law requires responses within 30 business days, though it allows public bodies to request extensions in some circumstances. In 2016-17, the report said, the government completed responses to 9,857 access to information requests. On average, it took 46 days to respond to requests, and those that were late were past due by an average of 62 days, it said.

“Government continues to contravene its statutory obligations,” the report said. “The results also show a decline in government’s performance from earlier this decade when the on-time response rate hovered around 90 per cent for over [four] years.”

Recommendations included proactively disclosing more records, providing more resources to close overdue files and that “Government must take whatever action necessary to respond to access requests within the timelines allowed by FIPPA.”

“We’ll be looking at the recommendations and of course we take them very seriously,” said Jinny Sims, the minister of citizens’ services.

“For 16 long years, under the BC Liberals, we saw government becoming more opaque, a government of triple deletes and a government of win at all costs,” Sims said.

The government, which took office on July 18, has begun consultation on the issue, but won’t rush the review of a law that applies to some 2,800 organizations, she said. “We want to make sure we get this right so that British Columbians can have a government that’s open, transparent, accountable and they get the information in a timely manner, while at the same time balancing the absolute necessity to protect privacy.”

Sims said the compliance rate has risen to 91 per cent since the NDP took office. “That’s a huge progress that’s been made in this very short time,” she said, attributing the improvement to: “Having targets, having people focused, and maybe people seeing there’s a change in government and there is a need to expedite things.”

In an emailed statement, BC Liberal citizens’ services critic Steve Thomson said the “report shows some progress made in improving response times but is also clear that more work needs to be done.”

Image: Former Premier Christy Clark during the 2017 swearing-in ceremony. That didn't last long. Photo: Province of B.C. via Flickr

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Suzanne Legault, Canada’s Information Commissioner, says federal officials are suppressing freedom of information in Canada.

“I am seeing signs of a system in crisis, where departments are unable to fulfill even their most basic obligations under the act,” she told a group of bureaucrats yesterday in a private meeting.

A copy of the watchdog’s speaking notes was obtained by The Canadian Press.

According to Legault new protocols and directives are thwarting the public’s access to information. She cited a Treasury Board directive, released in April of this year that instructs bureaucrats to exclude ministers’ offices from access-to-information document searches.

Some protection is afforded to information contained in a minister’s office due to a Supreme Court of Canada ruling in May of 2011, but this new directive oversteps the measures of that ruling.

“This new component is not found in the Supreme Court of Canada’s decision,” her speaking notes read. “In my view, it is potentially damaging to requesters’ rights.”

The directive in question also gives senior political staffers decision-making power over which documents are relevant to access-to-information requests, leaving ostensibly non-partisan decisions up to political actors.

Other points of concern for Leagult were unfulfilled requests, where information was unjustifiably refused or excluded from the Access to Information Act.

In addition, such unjustified delays were irresponsibly handled by departments.

Legault took the Department of National Defense to federal court for a 1,110-day extension under the Act, only to have the department release the documents a few weeks before her challenge in court.

“This type of case is not rare,” she said.

According to her notes, complaints to the Information Officer’s office in the first 5 months of the 2013-2014 year is up by 35 per cent. Complaints about departments claiming ‘no record exists’ in response to a request are also up by 34 per cent.

This week marks the annual Right to Know Week which promotes transparency in government.

Commissioner Legault also launched a formal investigation into the Harper Government’s systematic efforts to silence scientists and censor their engagement with the media. That investigation, launched after the release of a 128-page report by the University of Victoria’s Environmental Law Centre and Democracy Watch, is currently ongoing.

Legault has previously admitted this government is “not the most transparent,” and is a laggard in the Access to Information area. In 2011 less than 20 per cent of requests were fully disclosed. In early 2013, Legault claimed the government's transparency was at an all time low and requests for extension were at an all time high.

Poor access-to-information regimes "prevents Canadians from holding governments to account," she told the CBC back in February.

"Canadians should be angry," she said at the time. "It's really a fundamental democratic right in Canada [and] it's linked to freedom of expression."

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A letter from the University of Victoria’s Environmental Law Centre (ELC) and citizen advocacy group Democracy Watch asks Information Commissioner Suzanne Legault to investigate “the systematic efforts by the Government of Canada to obstruct the right of the media—and through them, the Canadian public—to timely access to government scientists.”

It argues, “There are few issues more fundamental to democracy than the ability of the public to access scientific information produced by government scientists—information that their tax dollars have paid for. We as a society cannot make informed choices about critical issues if we are not fully informed about the facts.”

This investigation is necessary, the groups claim, “because Canadians cannot make smart choices about critical issues such as climate change, oil sands development and environmental protection if the public does not have full access to the Government’s best scientific knowledge on those issues.”

The impetus for this letter came in the form of a 128-page report from the ELC entitled Muzzling Civil Servants: A Threat to Democracy, which outlines the numerous documented cases of interference from Government of Canada Media Relations in journalists’ efforts to attain accurate statements from scientists on political hot button issues such as climate change.

Examples from the report include the case of scientist David Tarasick who, documents show, was prevented from speaking about the research he published in Nature Magazine under the title “Unprecedented Arctic ozone loss in 2011” for two weeks.

It also cites examples involving from the Department of Fisheries and Oceans, Natural Resources Canada, the National Research Council, the Canadian Food Inspection Agency, and the Department of National Defence.

The evidence of muzzling reached a new level in the case of scientist Scott Dallimore who was forbidden to communicate with journalists about a study that involved a flood that took place in Northern Canada “almost 13,000 years ago.”

According to the report, Natural Resources Canada’s “media relations manager wrote to Dallimore ‘we will have to get the minister’s office approval before going ahead with this interview’ because the reporter represented a 'national news outlet' and the subject matter of the interview had ‘wide-ranging implications.’”

The report also contrasts American and Canadian policies, pointing out that while American scientific policies have made significant movement toward transparency under the Obama administration, “Canada has moved in the opposite direction under Prime Minister Harper. Since 2006, Prime Minister Harper’s government has gradually tightened the media protocols that federal scientists and other government workers must comply with.”

Commissioner Lagault has admitted in the past that the Canadian government is “not the most transparent,” and lags in the area of Access to Information, though she has yet to respond to the call for an investigation. 

Meanwhile, Minister of State for Science and Technology Gary Goodyear told The Province via e-mail "we reject the premise of the accusations." He claimed that the "government provides significant access to federal scientists."

This comes just two weeks after American scientist Andreas Meunchow reported on his blog that he refused to sign a Canadian confidentiality agreement saying, “it threatens my Academic Freedom and potentially muzzles my ability to publish data and interpretation and talk timely on science issues of potential public interest without government interference.”

In response to the many loopholes that exist in the access to information laws across Canada, as well as the lack of enforcement and audits to ensure people are following the law in some jurisdictions, Democracy Watch and the Open Government Coalition call for the following 8 key changes:

1. any type of record created by any entity that receives significant funding from or is connected to the government, or was created by the government and fulfills public interest functions, should be automatically covered by access to information laws and systems (as in the United Kingdom);
2. all exemptions under access to information law should be discretionary, and limited by a proof of harm test and a public interest override (as in B.C. and Alberta);
3. the access to information law and system should require every entity covered (as in the United Kingdom, U.S., Australia and New Zealand): to create detailed records for all decisions and actions and factual and policy research; to routinely disclose records that are required to be disclosed; to assign responsibility to individuals for the creation and maintenance of each record, and; to maintain each record so that it remains easily accessible;
4. the access to information law and system should allow anyone who does factual or policy research for the government to speak to the media and publicly about the topic;
5. severe penalties should be created for not creating records, for not maintaining records properly, and for unjustifiable delays in responses to requests;
6. the Information Commissioner should be given explicit powers under the access to information: to order the release of a record (as in the United Kingdom, Ontario, B.C. and Quebec); to penalize violators of the law, and; to require systemic changes in government departments to improve compliance (as in the United Kingdom);
7. funding to the access to information system and enforcement should be increased to solve backlog problems instead of increasing administrative barriers, and fees for access should be lower overall and standardized, and;
8. Parliament must be required to review the ATI Act every 5 years to ensure that problem areas are corrected.

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