B.C.’s privacy commissioner is slamming a new government bill that will add application fees to Freedom of Information (FOI) requests, calling it the wrong approach that will ultimately hurt transparency.
“I think this is just a step in the wrong direction,” Michael McEvoy told CHEK News on Monday.
Citizens’ Services Minister Lisa Beare said Monday she’ll implement a “modest fee” of around $25 per request for public information from the government under the FOI act. The only exemption is if a person requests information about themselves.
“It will not be a barrier,” she told reporters. “It’s a modest application fee and in line with other jurisdictions.”
Not so, said McEvoy, who is is the legislature’s independent watchdog for the FOI law.
“I am concerned about that because any time a fee structure is put in place it acts as a barrier and deterrent to people making access requests,” he said. “We prided ourselves in British Columbia for 25 years of having a system that was free of fees… but fees do not add further to accountability or transparency.”
McEvoy said he was consulted about the changes and expressed his opposition to government, but was ultimately ignored.
Not only that, the final legislation tabled in the house Monday cut his office out of the the new application fees. While McEvoy retains the authority to waive all the other fees under FOI, the new legislation specifically exempts him from touching the new application fee.
“Interestingly enough on the issue of this initial application fee I do not have the authority to waive those fees if it’s in the public interest,” he said.
“They’ve designed the law in a way so that no exceptions to be made once those fees are implemented. Which I just think is not the way to go.
“If they are going to bring them in you want the ability to waive them if it’s in the public interest or it’s financially detrimental to the application.”
B.C. had been part of of seven provinces or territories without application fees for FOI. At $25, its proposed new fee is five times that of Ontario’s, but in line with the Alberta government.
Internally, the government has blamed a backlog in FOI delays partly on the Opposition BC Liberals, which it says filed more than 4,000 FOI requests in the last year, at an average of 13 per day, and has cost the system $13 million in processing fees.
However, McEvoy said the opposition’s ability to access government records under FOI is a fundamental part of the law and the system, and not sufficient rationale to institute a new wide-ranging fee on everyone.
“Oppositions gathering information about how government systems are running is part of a free flowing properly functioning democracy,” he said.
The government also cites rising media requests, including from one reporter who submitted 397 requests in a single year, more than the entire provincial media’s 328 requests that same year.
McEvoy said that argument also fails to justify the fees.
“Whether it’s the opposition, who are there on behalf of the public, and the media, who are there asking questions on behalf of the public, of course those particular organizations are going to be asking more questions,” he said.
“So that is not a reason to put in a fee which in effect penalizes those who are using the system to try and understand what our government is doing, not just on tax dollars but policy making and a whole range of things.”
He also took a shot at the current BC NDP government, noting it, like other parties, are very supportive of the FOI system while in opposition and then when in government make changes to curtail access.
“Every opposition party that I’ve ever known is very supportive of strong FOI laws, and on many instances I think we’ve seen Social Credit, Liberal and NDP, when they get into government suddenly they get less enamoured with FOI laws,” he said.
An all-party legislature committee was struck in June to study the FOI law and make recommendations but the changes Monday were brought in before that committee even began its work.
Overall, BC’s current FOI system is “holding water” after delays caused by COVID-19, said McEvoy. He encouraged government to add resources to the system to improve response times, rather than fees that penalize users.
“The system could be working more quickly,” he said. “More resources could be put into more various public bodies, especially those dealing with many applications.”
The legislation on Monday also included changes that will require public bodies to report out if there’s a privacy breach, and alert citizens, which McEvoy said he supports.
However, he said the bill proposes a “very big shift” to allow government and public bodies to share personal information outside of Canada.
The government said it needed the change to allow for the storage of information in the digital cloud, and cited the post-secondary sector as benefiting under the proposed changes by allowing schools to attract more students with better cloud-based use of technology.
“That’s a huge change, and the question is what are they going to replace that with, because you can’t just have a situation where public bodies can send your information anywhere,” said McEvoy. “It has to be considered whether it’s going to the States, whether it’s going to Russia, China or Romania or wherever it is, there is risks in that.”
Currently, governments have to keep people’s personal information inside technology housed in the country.
“What they are proposing to do at this point is get rid of the provision in the act that doesn’t allow it and they haven’t replaced it with anything – no regulation they’ve shared with the public,” said McEvoy. “And that’s a matter that is really troubling, because how are legislators going to debate this provision if they don’t know what’s going to be in place of it?”