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Foiled at last?

Maclean Kay: The NDP's reasons to limit or charge for Freedom of Information requests don't seem to hold water. A 2019 attempt to deny requests from the Official Opposition may be more instructive.
The legislature in Victoria (JL IMAGES /

We’ve known for some time that BC’s FOI system doesn’t really work – but not for the reasons the NDP are half-heartedly giving.

First, it’s not because of cost.

This is by far the most flimsy and frankly silly justification, and not just because the provincial deficit is what it is. FOI requests don’t “cost” anything except time. The people responding to FOI requests are salaried employees or appointees; they don’t charge overtime. And unless the request is deemed to be particularly excessive and time-consuming, there’s no bill attached – and when there is, it’s paid by the person or organization making the request, not the taxpayer.

So while complying with FOI requests can be extraordinarily time-consuming, the issue here isn’t money.

Second, it’s not to streamline and/or improve transparency.

There’s no way of knowing what percentage of FOI requests are made for information other provinces routinely disclose proactively, but it’s safe to say this has increased in the pandemic, as the province has consistently clamped down on basic data. As CTV’s Penny Daflos has noted, information like the COVID-19 death and infection tolls from hospitals shouldn’t take an FOI to be disclosed. But it has.

In other words, a lot of FOI requests in BC wouldn’t be made in other provinces, because that information is a quick Google search away. Some of the same stories that grabbed headlines here likely wouldn’t have raised eyebrows; the exact same data is never as sexy when you readily find it on government websites.

The third justification, it’s a handful (actually just two) of people and organizations creating a nuisance, is closer to the real reason, but still not quite there.

In opposition, the NDP made hay with FOIs. And make no mistake, they were smart to do so: the issues they uncovered played a major role in their pivotal 2017 election win, which even a year prior, the NDP believed all but unwinnable.

Given that very dramatic lesson, it’s genuinely hard to understand how once they found themselves in government, the NDP were somehow caught off guard being the ones subject to FOI rules.

For their part, the BC Liberals did seem to learn that same very dramatic lesson, as they took the NDP’s fishing expedition approach to FOIs, and apparently ramped it up, filing dozens of requests every week.

They started to score some hits. Internal worries that a letter from Agriculture Minister Lana Popham to fish farms sounded too much like a not-so-veiled threat. A Premier’s Office plan to place political staff in non-partisan constituency offices. Documents that showed the provincial government had created 5,717 childcare spaces, and not the touted 22,000. Most dramatically, Jinny Sims had to resign from cabinet.

Obviously, none of these snowballed into election or narrative-changing issues. But the NDP didn’t want to wait and see if any others would, and in 2019 applied for permission to ignore a number FOI requests from the Official Opposition, calling them “frivolous and vexatious.”

The adjudicator disagreed, ruling “The Opposition has a genuine and serious interest in requesting and receiving these records. I am satisfied the Opposition’s access requests were not made in bad faith or made primarily for a purpose other than gaining access to information.”

This week, BC’s Information and Privacy Commissioner was frank and direct in his criticism of the NDP’s bill, calling it “a step backwards,” and “baffling.” The proposed fees will be – and indeed, are explicitly intended to be – barriers to journalists and both opposition caucuses, who have limited and set budgets.

Whether this criticism or the wider media backlash convinces the NDP to change course is another question. Two years after first trying to excuse themselves from FOI requests from the official opposition, the NDP seems to have found another way to try and shield themselves from future embarrassments – and from narrative-changing scandals.

Maclean Kay is Editor-in-Chief of The Orca