Watchdogs, human rights groups decry B.C.’s freedom of information fees

B.C. Premier John Horgan is defending his government’s proposed changes to how the public can access government documents, including a fee to get that information, despite an onslaught of criticism from watchdogs and activist groups who say say fees would add to secrecy and punish marginalized communities.

When asked about the proposed changes at a press conference Thursday, Horgan said they are critical to modernizing the legislation.

“We haven’t settled on a fee,” he said. “The bill allows a fee to be set by regulation. Other jurisdictions have fees. We felt that it was important for executive council for cabinet to be able to put in place a fee if if we felt it would be necessary,”

Bill 22 would amend section 75 of the Freedom of Information and Protection of Privacy Act (FOI) to allow the province to charge “a prescribed application fee.” Minister of Citizens’ Services Lisa Beare says the fee would be “modest” and will not apply to individuals looking for their own personal information.

A $25 fee suggestion came from Beare who said, “other jurisdictions have a fee between $5 and $50, I’m recommending a number right in the middle of that.”

Re FOI & proposal to have fee for applications@jjhorgan haven't settled on a fee yet, nor is there committment to have one in legislation yet. "Not intention to restrict people's ' individual requests. Believes voluntary disclosure is best way.#bcpoli @CityNewsVAN

— LizaYuzda (@LizaYuzda) October 21, 2021

However, Caitlin Shane with PIVOT Legal Society says any suggestion of charging for information disproportionately impacts low-income and marginalized communities who may need it for legal cases or to learn more about an issue.

“We rely on information generated through FOIs all the time, as do the communities we work with. It’s things like police policy, police reports, overdose information, policies of cities, bylaw enforcement, financial plans of local governments,” she said. “A flat fee presumes we all have the same capacity to pay it, the same resources, and it pretends that we’re all going to be equally affected by it. But that’s patently untrue and the BC NDP knows this. It has always claimed to know this at least when it publicly prides itself on understanding systemic inequality.”

A step in the wrong direction

B.C.’s Freedom of Information and Privacy Association (FIPA) calls the bill a “step in the wrong direction.”

“A legacy of transparency scandals, from fast ferries, to triple delete, to wood chippers at the Legislature, show the costs of secrecy and the importance of getting these legislative amendments right” FIPA president Mike Larsen wrote in a release.

FIPA says the legislation needs “substantial revision” and it would push for amendments.

Democracy Watch co-founder Duff Conacher says the public “shouldn’t have to pay twice for information.”

“The public pays for government to create information and maintain it and there should be no fees for accessing that information,” he said. “This kind of fee has been proven to be a complete waste because it costs government more to process the payment than the payment of $25 amounts to.”

FOI requests used by students, lawyers, journalists, human rights groups

Conacher says in addition to media and advocacy groups, students, professors, and other professionals doing research would feel the impact of the fees.

He points to the Globe and Mail’s 2017 ‘Unfounded’ series, where documents obtained by freedom of information uncovered large numbers of sexual assault and harassment reports that police had refused to investigate.

“That put enormous pressure on all sorts of forces to change the way they deal with those complaints and also look back at past complaints and investigate some of them that had just turned be away because of bias,” he said, adding the ripple effects lasted well into 2020.

Related articles

• Heiltsuk Nation concerned it wasn’t consulted for VPD handcuffing policy changes

• People want less heckling, more transparency from B.C. legislature: poll

• Former top B.C. legislature official investigated by RCMP for breach of trust: reports

BC Civil Liberties Association (BCCLA) policy director Meghan McDermott says her organization was initially thrilled with the idea of modernizing freedom of information legislation, but the feeling was quickly replaced with disappointment.

“It’s unclear why the government needs to do this why they need to do it right now and why they need to do it so quickly. Usually that’s a sign of a government that’s trying to cut corners or to shore up its powers,” she said.

McDermott points to the recent example of an Indigenous man and his granddaughter being handcuffed by Vancouver police officers after being wrongfully accused of trying to open a bank account with invalid documents. Questions were raised about what policies police were invoking because the documents are not publicly available online.

The BCCLA has also been working with high school students who are trying to get information about some online learning modules and facing pushback from the school district.

“Them asking for that kind of information with a very small budget for a student high school newspaper, they are already running into barriers,” she said.

Premier says opposition parties abusing FOI

On Thursday, Horgan said there has been an “extraordinary proliferation” of FOI requests from opposition parties, including one request asking for a screenshot of his computer. Horgan held up his own phone to the cameras at the press conference.

“I play Scrabble, I have Spotify. I check my heart rate, I know what the weather’s going to be like in Prince Rupert. And I have email, I have text messages, and I have a telephone, and a host of other things that I don’t even know what they are,” he said. “But for some reason the Opposition believes that not just my telephone but the telephones of thousands of public servants should be available for some reason known only to them. I think the vast majority of British Columbians could care less.”

“It’s a ridiculous reason,” Conacher said. “They’re not going to cover any costs of responding to freedom of information requests with this fee, but it will put up a barrier to some requesters filing requests.”

Shane says if it’s money the government needs, it has other means such as through taxation policy.

“If the issue is there’s an overload of freedom of information requests, that says something,” she said. “And there should be more resources allocated to ensuring this process runs smoothly and without the delays that currently plague it.”

When asked, Horgan said his government may consider changing the rules to instead have a limit on the number of free FOI requests.

“I like the idea of your ‘tenth coffee is free’ card. That sounds like a good idea,” he said. “I believe we need more proactive disclosure of information that sometimes takes months and months to release because of the processes we have in place to protect personal privacy.”

But the perception the government could apply fees at its discretion is not sitting well with McDermott.

“I think that that’s pretty dangerous,” she said. “I’m really disappointed in the idea that fees are going to be used as a disincentive, depending on who the person is who’s making requests. As it is, we already have knowledge that depending on who the person is making the requests that you can get different treatment by government.”