When Premier John Horgan whipped out his iPhone during a press conference this week to illustrate how onerous BC’s Freedom of Information laws had become, virtually nobody knew what the heck he was talking about.
There was the premier, live on television from the legislature press theatre, flipping through his phone’s Scrabble app and a heart rate monitor program, all the while railing against what he said were ridiculous requests by the Opposition BC Liberals to view “screenshots” of his electronic devices.
“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,” he said. “I think the vast majority of British Columbians could care less.”
The premier was clearly angry, but it was mystifying to everyone else what exactly he was angry about.
Turns out, there’s been a simmering four-year battle between the premier’s office, the opposition and BC’s privacy commissioner over what kinds of records should be public from electronic devices - like iPhones - used by the premier and his cabinet ministers.
The government lost the fight earlier this year, with a ruling by the commissioner’s office.
Outraged, the Horgan government responded this week with Bill 22, an out-of-nowhere overhaul of BC’s FOI laws that will overrule the privacy commissioner and exempt “metadata” of electronic devices used by politicians from the public record.
The lengthy and politically-charged fight goes a fair distance to explain not only the government’s motivation to overhaul the FOI act, but also its dismissal of concerns raised publicly by the privacy commissioner since the legislation was introduced.
Many have wondered why the government would so blatantly thumb its nose at the commissioner’s public appeals to rethink the bill. Turns out, it’s not so much thumbing its nose as flipping the bird to the independent watchdog.
You can trace the origins of this fight back to December 2017, when the Opposition BC Liberals sent the government a Freedom of Information request for: “A list of all file names and folder names located on the desktop, my downloads, my documents, and my favourites folders from all electronic devices used by the Premier/Minister/Minister of State.”
The idea was to obtain a kind of table of contents of all the recent documents the premier and his ministers had been reading, writing and editing on their laptops, tablets, and phones.
From there, if anything looked interesting - like “SECRET-PLANS-FOR-WORLD-DOMINATION.doc” - the opposition would toss in another FOI request asking for that particular document.
It was certainly a fishing expedition, but not uncommon among opposition parties (including the former BC NDP opposition) known to ask for things like cabinet agendas, cliff notes, email headers, and other summary lists of data as a starting point to figure out what, if any, low-hanging political fruit is just waiting to be picked.
The premier’s office balked at the request.
The government fired back a letter saying it was not responsible for creating a summary of the documents on the electronic devices of cabinet ministers, and even it was the amount of work required would “unreasonably interfere” with normal operations.
The opposition complained to the privacy commissioner in March of 2018. During mediation between the two sides, the BC Liberals clarified they would like “a screen print (or the like) of each of the named folders” along with the files listed within.
The two sides would duke it out in meetings on this issue for almost three years.
The BC government held firm to the argument that it would take an unreasonable amount of time and effort to have to take screenshots of each cabinet minister’s electronic device folders and then disclose them publicly.
But it failed to convince the privacy commissioner’s office, which ruled against it in a February 2021 decision that said there were ways to generate the records with minimal work. The government was ordered to release the records.
That’s when things started to get really weird.
The government turned around and demanded the opposition pay $2,700 to create a specialized computer program that would do the work of scraping the folders of each of the cabinet minister’s devices and churn out a basic list of files rather than an actual screenshot.
That’s when things started to get really weird.
The two sides fought about this idea, and the bill, before the opposition - using its taxpayer-funded caucus budget - went all in and cut a cheque. Civil servants started coding a computer program from scratch to do the work.
Two months later, in May 2021, the government reluctantly handed over a 68-page print-out of the files on the electronic devices belonging to the premier and his ministers.
It’s a pretty boring read.
The records show a variety of speaking notes, briefing notes, media responses, reports and other things ministers were reading and replying to from their devices.
For example, Health Minister Adrian Dix was working on something called “supply chain analysis summary.docx” amid supply chain concerns during the pandemic, and Attorney General David Eby was editing an upcoming news release on homeless shelters in Vancouver called “NR_Vancouver shelters_Feb_20_21_EDITS.docx”
Not exactly barn-burning stuff. But if you’re an opposition looking for a snapshot of what ministers are doing at a given moment, the list could be of some value.
Ironically, given the long fight and his apparent anger, Premier Horgan returned almost no records, except for something called “Sept.PDF” and a recording of a recent interview.
Still, the opposition’s ploy had ultimately worked.
So the BC Liberals doubled down and put in another request.
The party asked for the same lists of documents, but on the electronic devices of Horgan’s senior staff - chief of staff Geoff Meggs, deputy chief of staff Amber Hockin, deputy communications director George Smith, special advisor Don Bain, and priorities and planning secretariat director Jon Robinson.
This time though, the premier’s office was ready.
The government fired off an email politely informing the opposition that even though it had paid $2,700 to create a custom computer program, there would still be a cost every time the party wanted someone in the government to actually turn the program on and run it.
The bill? $510.
“The fee paid for the last request created the base programs, but the majority of the effort was in running the program,” government explained.
The government informed the opposition that even though it had paid $2,700 to create a custom computer program, there would still be a cost every time someone in the government actually turned the program on.
It’s not entirely clear what kind of computer program the government had created, but at $510 a pop you can’t help but imagine some sort of three-storey supercomputer located in a government warehouse, with cables connected to electrical transforms, arcing tesla coils and a hapless civil servant showered in sparks every time he pulls the giant on-off handle to activate the machine.
Regardless, the threat of extra fees worked.
This time, it was the BC Liberals who balked. They let the request expire without paying the bill.
That brings us to this week, when the BC government abruptly tabled its new FOI bill.
Most of the attention was paid to the fact it proposed to create a new administrative fee to people who filed an FOI request for government information. Citizens’ Services Minister Lisa Beare declared it a “modest fee” and that "other jurisdictions have a (fee) between five and $50. I'm recommending a number right in the middle of that."
While academics, researchers, non-profits, journalists and others howled in outrage at the proposed new $25 surcharge to FOI requests, many missed section 3(5) of the bill, which ruled FOI does not apply to: “a record of metadata that: (i) is generated by an electronic system, and (ii) describes an individual's interaction with the electronic system.”
That clause, in one sentence, will undo the ruling of the commissioner’s office in February, and deny future FOI requests for things like file lists on ministerial laptops, or recently-created documents on tablets and iPhones.
“I am also deeply concerned that excluding a record of metadata will hinder the interests of transparency and accountability,” wrote privacy commissioner Michael McEvoy after reading the legislation.
“Metadata associated with a record can, for example, enable useful analysis of how particular records have evolved over time. This can significantly enhance public understanding of who is responsible for a record, and for its evolution. The proposed exclusion of such information from the right of access is worrisome.”
By now though, we know the backstory of the fight between the offices of McEvoy and Horgan.
Which puts new context onto the premier’s reply, when asked about the commissioner’s concerns this week.
Nothing about this story is how it “should be.”
“The commissioner had a dozen-and-a-half meetings with government officials on the creation of the act and it turns out that we disagree on some points,” Horgan said. “And that is how it should be.”
Nothing about this story is how it “should be” - from the extraordinary fees, to the three year timeline, the custom computer software, the legislative runaround of a statutory office, or the theatrical display from the premier with his iPhone.
If anything, it’s a cautionary and depressing tale about how badly our public records system performs when placed between an opposition fishing for an easy scandal and a premier’s office intent on playing hardball to keep its records secret.
The public wasn’t particularly well served by any of it. And unfortunately, with the Horgan government ready to ram Bill 22 through the legislature this fall, things are only going to get worse.
Rob Shaw has spent more than 13 years covering BC politics, now reporting for CHEK News and writing for The Orca. He is the co-author of the national best-selling book A Matter of Confidence, and a regular guest on CBC Radio.
- Rob Shaw: A fascinating debate in the legislature illustrates the difficulty of government trying to create and impose regulations where none existed before – in this case, trampoline parks.
- Maclean Kay also looked at the history of how this bizarre FOI situation came to be.
- In a country as rich as Canada, no one should have to go cold or hungry. But is universal basic income the answer? Roslyn Kunin takes a closer look.