III.  Routine Disclosure/Active Dissemination

The Case for Routine Disclosure/Active Dissemination

The time has come to reform the Freedom of Information and Protection of Privacy Act from being essentially reactive C a legal system for responding to formal access-to-information requests C to being pro-active. That is, the legislation needs to be updated to legally require public bodies themselves to take a pro-active approach to disseminating public records, where there is a significant public interest in that dissemination, in order to promote the underlying goals of the legislation C openness, transparency and accountability. We shall refer to pro-active dissemination as Aroutine disclosure/active dissemination@.

There are three justifications for routine disclosure. First, a pro-active duty to make records publicly available on a continuous basis would significantly assist to achieve the fundamental purpose of the Act C Ato make public bodies more accountable@ (section 2(1)). Here we pause to cite Hansard records of the speech of Colin Gabelmann, then the Honourable Attorney General who sponsored and introduced the bill that led to the creation of the Act:

A… the philosophy underlying the freedom-of-information provisions is that government is the public=s business and the public has a right, with certain necessary exceptions, to have ready access to information in the hands of government or government agencies. ….

What this bill seeks to do is empower citizens so that they can fully exercise their democratic rights. The reality is that if government has information which is denied to citizens, it becomes extremely difficult to make informed judgments about government policy or to endeavour to influence public policy.@^[1]

If public bodies were legally required to provide routine disclosure for certain records in which there is a public interest in regular dissemination, then accountability will undoubtedly be enhanced. While the current regime is important, it depends on the efforts of individuals and groups to actively request records. This process can be time consuming and sometimes expensive. Nor do all citizens have the abilities or skills to pursue an access request. Routine disclosure will enable individuals, organizations, the media and government opposition C all critical players in ensuring accountability C to have easy and ready access to records.

Second, routine disclosure would further enhance accountability by ensuring that the public can obtain quick access to important records in a timely manner. In a democracy, timing can be everything. Formal access requests usually take at least 30 days and sometimes months to process through a system that can involve mediation and reviews by the Information and Privacy Commissioner. Indeed, the more politically controversial a record, the longer it takes for a request to be processed through the system. The familiar saying with respect to our court system C  Ajustice delayed is justice denied@ C  has an equivalent in the democratic process C  access delayed is accountability denied. As a remedy to this problem, routine disclosure would make certain important information available upon demand.

Third, routine disclosure can actually reduce the costs associated with administering the Act. For example, search costs be eliminated and it is also quite possible that the time required to review a record for disclosure will be less than otherwise under the formal access request process by building in a review of a record at the front rather than at the back end. In addition, there will be no extra cost for processing multiple requests for the same or substantially similar records.

In sum, routine disclosure is the way of the future for enhancing democratic accountability. The status quo, while important, represents complacency and stagnancy.

The Vancouver Police Department Regulations and Procedures Manual C A Case Study in the Need for Routine Disclosure/Pro-active Dissemination

It is worth considering a concrete example of how routine disclosure would enhance accountability and promote efficiency.

As part of our mandate to protect civil liberties, the BCCLA regularly engages in police accountability work. We have an active and ongoing interest in the work of Vancouver Police Department (VPD) and other police forces on a broad range of issues. We assist complainants, occasionally make complaints, comment on issues relating to policing in the media and engage in law reform efforts to improve police accountability and police practices in order to better respect civil liberties.

In the fall of 2003, the B.C. Civil Liberties Association made a request under FOIPPA for a complete copy of the Vancouver Police Department=s (VPD) Regulations and Procedures Manual. The VPD refused to provide any of the manual, reasoning that some of the exceptions within FOIPPA may apply to some of its provisions. The VPD did provide the BCCLA with a copy of the Table of Contents and requested us to identify which parts of the manual we desired. We have now asked the VPD to process our request for the whole of the manual, as we are entitled to do under the legislation, recognizing that there will likely be some legitimate law enforcement exemptions from the records.

At the time the above noted request was made, the BCCLA was particularly interested in VPD policy regarding breach of the peace policy in the context of the Stanley Park Six case (beating of suspected drug traffickers) and breaching of intoxicated individuals as a result of the Frank Joseph Paul case (death of man in possible police custody). But our interest in the details of the VPD Manual transcend any one particular case or issue and cover all aspects of policing. Thus, for the BCCLA and any other individual or group interested in police accountability, the VPD=s Regulations and Procedures Manual is an important source of information for understanding the operations of the police.

The BCCLA prides itself on informed advocacy and public education. In order to be informed, we need timely access to government information. When a controversy arises and we are asked to comment or make submissions, we need the information immediately. The formal access process is not designed to provide immediate access. This is a real constraint on achieving the purpose of accountability.

It is also worth noting that the BCCLA had earlier obtained a copy of the VPD=s Breach of the Peace policy via a personal contact within the police without reverting to the formal access process. A further request for a separate VPD policy with respect to breaching of intoxicated persons was made several weeks ago through the same informal channel. That request has now been referred to the formal access process and we have yet to receive a response from the VPD. We note this information for the proposition that, as a matter of principle, timely access should not be a matter of personal contacts.

The VPD=s response is not surprising, though legally inappropriate. The Manual is a large document. It will take considerable time and expense to comb through the Manual to assess which provisions may be legitimately excepted under the legislation. However, we have a right to request the entire record and the VPD must process that request.

The VPD=s response illustrates one of the most significant problems of FOIPPA. Rather than providing a legal obligation that would mandate and encourage pro-active disclosure of information that is in the public interest, FOIPPA currently outlines a very detailed procedure for responding to formal access-to-information requests. Clearly, this is a critically important procedure for democratic accountability and it has served the citizens of British Columbia well in the first ten years of the Act. But FOIPPA is reactive in nature, not pro-active and falls far short of encouraging a culture of openness and transparency.

Our purpose in relating the BCCLA=s experience with the VPD is not to portray the VPD as an institution with a particular problem with respect to the limits of FOIPPA as being reactive in nature. On the contrary, we believe that the response of the VPD is likely typical of many other public bodies. Thus, this case study is presented as an example of what is a pervasive and systemic problem that may be remedied by reform to the legislation.

In our submission, the policy and procedure manuals of all municipal police forces, subject to legitimate exemptions, should be available on-line as a matter of police accountability, without requiring a formal access-to-information request to be made under the Act.

To be clear, we are not suggesting that all records held by the police or any other public body be routinely disclosed. This would be impractical and unnecessary. But every public body likely has a core of records that, when examined, are good candidates for routine disclosure. A good case can likely be made that there is strong public interest in the disclosure of certain records in that they would significantly enhance accountability of the public body. Police policy manuals are one example. Most policy and procedures manuals for public bodies would also qualify as good candidates for routine disclosure. We note that many public bodies already actively disseminate records that are requested frequently by the public for access to benefits or entitlements.

Objections and Precedents

There will be predictable objections to our call for a legislative requirement for routine disclosure. For example, some might argue that it is not possible to legislate a culture of openness.

We agree with this objection. A culture of openness is one of the likely, but not inevitable, consequences of a legal obligation requiring routine disclosure. Ultimately, that culture will depend largely on the attitudes and actions of the people who work within a public body. However, a legislative obligation for routine disclosure will at least improve transparency and thus accountability by requiring a certain degree of compliance.

With respect to precedents for a legal obligation for routine disclosure, there is no jurisdiction in Canada that requires routine disclosure. However, in the United States, 1996 amendments to the Freedom of Information Act, now require federal agencies to post on their websites all records that have been requested three or more times previously.^[2] In addition, the 1995 Paperwork Reduction Act set out positive obligations to enhance public access and prohibited restrictive practices and policies that diminished routine access.^[3]

In the Canadian context, Ontario=s Office of the Information and Privacy Commissioner has been a leader in promoting routine disclosure. They have published a variety of documents including a practice bulletin advising public bodies regarding implementing routine disclosure/active dissemination of government records.^[4] Most recently, the Ontario Commissioner, Ann Cavoukian, has published a paper that encourages routine disclosure as a matter of good governance.^[5] Finally, B.C.=s Information and Privacy Commissioner, David Loukidelis, has added his voice calling for routine disclosure and recommending section 71 of FOIPPA be amended to require the routine disclosure of personal information without charge, subject to exemptions under the Act.

Proposal for Legislative Reform

The Freedom of Information and Protection of Privacy Act should be amended to require public bodies to routinely disclose and actively disseminate records in which there is a significant public interest in disclosure and which would promote accountability of the public body. Disclosure/dissemination should be limited to electronic format only. This amendment should occur at the beginning of Part 2, Division 1 of the Act to emphasize the importance of this obligation to public bodies.

The language of this provision should be mandatory. The onus will be on public bodies to determine which records should be subject to routine disclosure/active dissemination. However, when a member of the public seeks particular records and believes that the records should be routinely disclosed and has received a negative response from the public body, he or she should be able to notify the Information and Privacy Commissioner (IPC). The IPC should have the authority to investigate and order routine disclosure of certain records if he finds that there is justification for doing so. One of the factors the Commissioner should take into account is the number of times a record has been previously requested and disclosed, as in the example of the American legislation. The Act should also be amended to ensure that the Information and Privacy Commissioner has the authority to pro-actively audit (without a complaint) any public body for compliance with this obligation.

Recommendation 1: FOIPPA should be amended to require public bodies to routinely disclose and actively disseminate records, via electronic format, in which there is a significant public interest in disclosure and which would promote accountability of the public body.

IV.    Imposing a Standard of Reasonableness on Government Collections of Personal     Information

Consistent Standards for the Public and Private Sector

The new B.C. Personal Information Protection Act (APIPA@) requires a test of reasonableness in the collection, use and disclosure of personal information by organizations in the private sector. For example, subsection 4(1) of this legislation requires, Ain meeting its responsibilities under this Act, an organization must consider what a reasonable person would consider appropriate in the circumstances.@ A reasonableness standard is sprinkled throughout the provisions of PIPA. PIPA=s reasonableness test attempts to mirror the provisions of the federal Personal Information Protection and Electronic Documents Act, which also incorporates a reasonableness test in section 3 of that legislation.

In contrast to private sector legislation, the Freedom of Information and Protection of Privacy Act places no similar constraints on government when it collects, uses or discloses personal information. Public bodies may collect personal information as long as A(a) the collection of that personal information is expressly authorized by or under an Act, (b) that information is collected for the purposes of law enforcement, or (c) that information relates directly to and is necessary for an operating program or activity of the public body.@ [Section 26]

Public bodies may collect personal information if they legislatively permit themselves to do so, if it is for law enforcement or if is necessary for an operating program of government. They may collect personal information regardless of whether the collection is justifiable in the circumstances and whether or not it is reasonable. These constraints provide a very low threshold for invading the privacy of citizens, one that is certainly lower than the standard in private sector legislation.

In sum, private sector legislation now imposes a more onerous obligation on organizations when collecting personal information than the Act on public bodies. The result is that privacy is now better protected in the private sector than in the public. This is an anomaly that must be remedied. To do so would be a simple matter of amending section 26 of the Act to include a reasonableness standard.

The Challenge of Enforcement

While amending the legislation in this way might be simple, the question of enforcement is considerably more difficult. Who is to determine if the government is acting reasonably? Should the government itself have this authority? But wouldn=t that effectively undermine the protection? Should the Commissioner have order making power to determine that a government is acting unreasonably? Wouldn=t that essentially delegate the law making function to an unelected Statutory Officer of the Legislature and thus be inappropriate? Doesn=t the Charter in section 1 (Areasonable limits prescribed by law as can be demonstrably justified in a free and democratic society@), already require the government to act reasonably?

The BCCLA submits that the addition of a reasonableness standard in the Act would add substantive protection that would not otherwise exist. First, while governments have a general obligation under the Charter to act reasonably, this obligation does not arise unless there has been a violation of a specific right under the Charter. In many cases, it is true that the government may, by legislative fiat (s. 26(a)) or under s. 26(c), simply intrude upon the privacy of individuals. However, more common today is for the government to seek Aconsent@ from individuals to collect personal information. For example, the government has an extensive consent provision to collect personal information for applicants for social assistance from third parties to verify eligibility. While an individual is free to refuse to consent, he would also not be eligible for benefits. This presents an unfair dilemma if some of the proposed collections are unfair or overly intrusive. Indeed, there may not be a formal Charter violation to provide relief if one refuses consent.

On a more practical note, very few individuals will be able to retain legal counsel to challenge an unreasonable collection under the Charter. It is simply not an effective remedy and is in a sense an Aempty@ remedy for this reason. Instead, it would be much more practical to provide the Commissioner with jurisdiction to investigate a complaint under the Act.

The BCCLA submits that the Commissioner should have the authority to make an order with respect to the reasonableness of proposed collections of personal information by the government. It is important to note that privacy is considered not merely a privilege in a free and democratic society but a fundamental human right. To borrow the human rights analogy, governments are also constrained by limits under the Human Rights Code. The Human Rights Tribunal can prevent the government from acting in certain ways under the Code. Thus, there is a strong precedent for permitting the Commissioner to make orders that proposed government collections of personal information would be unreasonable and thus unlawful under the Act.

Recommendation 2: Section 26 of FOIPPA should be amended to include that the government may only collect personal information if it is reasonable in the circumstances.

V.  Application of FOIPPA to Records in the Custody of Municipal Police Forces 

The B.C. Civil Liberties Association is compelled to respond to the submissions of the B.C. Association of Municipal Chiefs of Police. To summarize their submissions, they have first recommended that police be exempted from the legislation and, instead, access requests be regulated by the Police Complaints Commissioner under the Police Act. Second, in the alternative, they recommend that the police have the authority to categorically refuse access to certain types of records, specifically information that is part of an ongoing investigation, or that these record categories simply be exempted from access legislation.

To respond, the BCCLA strongly opposes these recommendations and instead recommends that the current provisions continue to apply. The Chiefs identify three problems: (1) that FOIPPA forces an allocation of resources to deal with requests that takes away police resources to fight crime, (2) the Act makes it more difficult to gather information for law enforcement investigations and (3) the Commissioner of Information and Privacy does not have the expertise needed to make decisions with respect to disputes about enforcement.

In response, the BCCLA submits that the police, like any other public body, must allocate some resources to process access requests. The reality of an access-to-information regime is that it will take some resources to administer it. Indeed, that is the price of enhanced accountability for public bodies like the police. Improving accountability is one of the fundamental purpose of FOIPPA and thus the Chiefs= submission is odd given the Act=s applicability to the police for nearly ten years. We also note that the Chiefs do not argue that the resources that police departments do currently allocate to dealing with access requests are unreasonable compared to other public bodies. In this light, this Chiefs= complaint appears to simply be an unwillingness to accept the purpose of access legislation.

Yet curiously, the Chiefs recognize that they should be subject to some sort of access regime, they just want someone other than the Information and Privacy Commissioner to enforce it arguing that his office has insufficient expertise. Thus, they undermine their own submission with respect to the issue of resource allocation.

The Chiefs state that the Police Complaint Commissioner (PCC) should handle access requests of police records. However, the Chiefs have not provided any evidence to suggest that the Information and Privacy Commissioner=s (IPC) decisions have caused harm to law enforcement. Indeed, the BCCLA believes that over the years, the IPC=s office has garnered considerable knowledge and expertise regarding policing matters to sensitively apply the legislation to avoid harming legitimate law enforcement activities. Finally, on this point, we query whether the Chiefs have actually consulted the Police Complaint Commissioner who, we submit, has no resources to properly administer and enforce an access regime. Indeed, the PCC may not have adequate resources to administer his own jurisdiction with respect to police complaints let alone being able to administer an access regime for police records.

With respect to the Chiefs= submission that FOIPPA makes it more difficult to gather information for law enforcement, one of the strengths of the legislation is that the Act actually does create rules regarding the protection of personal information in ways that enhance privacy. As a natural consequence of incorporating fair information practices that are privacy enhancing, the legislation will necessarily make it more difficult for the police to gather personal information from other public bodies. But that is a good thing from the point of view of protecting privacy, not a negative consequence of the legislation. It does not bar the police from gathering personal information but, rather, creates rules to balance law enforcement and privacy interests. One wonders, given the Chiefs= submission, whether the police would also simply prefer that section 8 of the Charter of Rights and Freedoms, which protects Canadians against unreasonable search and seizure, not exist. The Chiefs= objection has no basis in principle and should be simply dismissed.

The Chiefs also recommend the removal of certain categories of records, particularly information in records relating to ongoing investigations. The BCCLA understands that an access request for information in an ongoing investigation can be atime consuming to process in certain cases. Indeed, this seems to be the primary objection to permitting access requests for ongoing investigations since section 15 of the Act,  the law enforcement exemption, ensures that the police can refuse to disclose information that, if released, would be harmful to law enforcement as set out in the legislation. So the objection appears, again, not one of principle with respect to permitting access requests for ongoing investigation, but a concern about allocating scarce resources to process such requests. We have dealt with the scarce resource objection above.

From the BCCLA=s point of view, there should be no exemption or authority to refuse to disclose records of an ongoing investigation. From an accountability perspective, there may well be public or private concerns about the adequacy of particular ongoing investigation that are legitimately the focus of an access request. When disclosure may harm law enforcement, the police=s activities are protected from disclosure. When they are not, the public has a right to be entitled to the information.

The BCCLA would oppose the creation of a category exemption for ongoing investigation records due to the potential for intended or unintended abuse if the police do not close files. This occurs regularly with respect to missing persons investigations, just the kind of case a relative or friend might seek information regarding if they believe an investigation has been inadequate.

Finally, the BCCLA wishes to comment on the submission of the Chiefs with respect to the application of section 25 of the Act. The Chiefs submit that sections 25 and 33(p), as worded and interpreted by the courts, preclude the police from (a) notifying an individual (as opposed to a Agroup of people@ or the Apublic@) about the threat someone else might pose to him or her and (b) that requirements for notification and due process may delay the release of the personal information even if there is a clear risk of significant harm to the public or group of people.

With respect, the BCCLA finds this submission unconvincing. The Chiefs cite the Clubb v. Saanich^[6] decision as constraining them from releasing personal information to those who are in danger. We disagree with this interpretation. The court in Clubb only imposes a requirement to give notice and provide an opportunity for submissions about a proposed release to the affected party where it is practicable in the circumstances. If such notice and due process would cause a delay contributing to the risk of harm to the public, the police would not satisfy their obligations under section 25(1). With respect to the problem of the absence of the word Aindividual@ in section 25, only an overly narrow and literal construction of the Act would make this interpretation possible. A large and liberal approach to interpretation would recognize that the police will be able to notify a single individual of a significant risk of harm to him or her either under section 25.

Recommendation 3.  The BCCLA recommends that the Special Committee does not adopt the recommendations of the B.C. Association of Municipal Chiefs of Police with respect to police records. 

VI.  Commissioner Powers to Review Legislation and Policy  

Section 42(1)(f) of the Act permits the Commissioner to comment on proposed legislative schemes or programs of public bodies. This is an important power but it is unnecessarily limited in two ways. First, the power is only as effective as public bodies consult with the Commissioner about their proposals. Not all public bodies do so. Thus, the Act should be amended to require public bodies to consult with the Commissioner in advance if there are access or privacy implications in their proposals.

Second, controversies and concerns sometimes arise after legislation has been passed or a program created. A particular problem may not have been apparent to the Commissioner even if he did review the proposals before they became law or an existing program. In these cases, the Commissioner must have the authority to provide advice to the government and make public comments about existing legislation or programs if he is to be an effective spokesperson for access and privacy.

Recommendation 4: Section 42 of FOIPPA should be amended to require public bodies to consult with the Information and Privacy Commissioner regarding proposed legislation or programs that have access or privacy impacts. 

Recommendation 5: Section 42 of FOIPPA should be amended to give the Information and Privacy Commissioner the authority to give advice and comment publicly on legislation or programs when they are in existence.

VII.  Conclusion

The BCCLA would like to thank the Special Committee for the opportunity to make submissions regarding FOIPPA. We believe that consultations such as these provide important opportunities for citizens participation in democracy and ultimately improve the quality of government law and policy.

We encourage the Special Committee to make recommendations that will strengthen the Act both respect to access-to-information and the protection of privacy. We would be pleased to discuss any of our submissions with you in more detail.

Prepared by

Murray Mollard, Executive Director
B.C. Civil Liberties Association
425 – 815 W. Hastings St.
Vancouver, B.C.  V6C 1B4

604-687-2919 / [email protected]

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