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Submission of the B.C. Civil Liberties Association to
the February 27, 2004 The British Columbia
Civil Liberties Association (ABCCLA@ or AAssociation@),
founded in 1963, is the oldest and most active civil liberties organization
in Canada. Access-to-information and privacy are important civil libertarian
values that are part of the Association=s
advocacy work. We were instrumental in the creation of FOIPPA in 1992
and have since played a leading role in consultations regarding privacy
legislation in the private sector at both the federal and provincial
levels. For more information about the BCCLA and its work, visit our
website at www.bccla.org. II. Introduction III. Routine Disclosure/Active Dissemination 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 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 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 604-687-2919 / info@bccla.org [1] British Columbia, Legislative Assembly, Hansard, Vol.
4, No. 20, (18 June 1992) at 2737 (Colin Gabelmann) [2] 5 U.S.C. s.552(a)(2)(D) [3] Robert Gellman, The Foundations of United States
Government Information Dissemination Policy at 7-8. [4] Information and Privacy Commissioner/Ontario, Practices
No. 22 - Routine Disclosure/Active Dissemination (RD/AD) of Government
Information, September 1998. [5] Ann Cavoukian, Opening the Window to Government:
How e-RD/AD Promotes Transparency, Accountability and Good Governance,
Information and Privacy Commissioner/Ontario, June 2002. [6] (1996), 35 Admin L.R. (2d) 309 (BCSC)
British
Columbia Civil Liberties Association E-mail:
info@bccla.org The
BCCLA is a non-partisan, autonomous charitable society that is member/donor
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