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Premier’s office to be exempt from scrutiny under law changes: McEvoy

Information commissioner expresses ‘deep concern’ over amendments
michael-mcevoy-oipc (3)
B.C.’s information and privacy commissioner Michael McEvoy is urging the government to rethink its proposed changes to the Freedom of Information and Protection of Privacy Act

B.C.’s premier’s office would be exempt from citizen’s information requests under proposed Freedom of Information and Privacy Act changes, the provincial information and privacy commissioner said Oct. 20.

In an open letter to Minister of Citizen’s Service Lisa Beare, commissioner Michael McEvoy urged the removal of the exemption from changes proposed in Bill 22 – the Freedom of Information and Protection of Privacy Amendment Act, 2021 (FIPPA).

The act not only covers the privacy of British Columbians but also governs how citizens can make applications for information from the government and which public bodies are open to such scrutiny.

“The Office of the Premier lies at the heart of provincial governance,” McEvoy said. “I call on the government to delete this proposal from Bill 22, for greater certainty that FIPPA’s transparency and accountability provisions will continue to apply, as they have for decades, to the Office of the Premier.”

McEvoy reasoned that a premier is a first minister and like any other minister should be subject to scrutiny.

Beare’s office, though, said the Office of the Premier will remain subject to scrutiny.

“The change here is actually a clarification of legal language,” a ministry statement said. “The premier’s office was under the list of public bodies that are not ministries and therefore officially subject to different rules under the legislation. However, they’ve always been treated as a ministry, and this change reinforces that.

Beare unveiled the proposals Oct. 18, saying amendments would help people access services faster while strengthening privacy protections.

“We’re making changes today to keep pace with advancements in technology and provide the level of service that people expect in the digital era,” Beare said.

McEvoy opened the letter saying he had “deep concern” about several of the B.C. NDP’s proposed FIPPA. He said the bill contains no information about what may come with regulations drafted after the bill’s passage.

“An overriding concern with Bill 22 is the unknown impact of key amendments because their substance will only be filled in through regulations, about which we know nothing,” McEvoy said.

Indeed, McEvoy urged the government repeatedly in the letter to both consult his office and to publish proposed amendments and regulations for public scrutiny.
The bill has drawn significant fire from critics who have said it falls short of what is needed and wrongheaded in its suggestion o access to information request application fees.

Data residency

“The issues at stake—particularly respecting the data residency amendments—are too important and meaningful debate depends on everyone knowing what is intended,” he said.

The greatest concern in the changes, he stressed, was around so-called data residency rules. Those govern where information about British Columbians can be stored on digital servers. In the past, the law held that information should be kept on servers in Canada. The rationale was that Canadians’ personal information would not be subject to laws of countries where the servers were located. For example, there have been fears the U.S., in the wake of 9-11, could seize Canadians data from servers in that country.

Under a 2020 ministerial order, the NDP government began allowing data sharing across borders as part of the fight against COVID-19.

It was suggested as a temporary move but Beare this week said that should change in order to keep up with technological shifts.

McEvoy, however, wants to know how the government will assure British Columbians their data is safe if saved abroad.

“This proposal represents a step backwards by British Columbia at a time when other jurisdictions are modernizing their data residency requirements,” he said. “It is crucial for government to disclose now what it intends to do to protect the personal privacy of British Columbians whose personal information may be exported outside Canada.”

Access to information fees

Beare has suggested an initial fee of perhaps $25 for access to information searches under the act. Such searches, used by citizens, businesses, journalist, researchers, opposition politicians, lawyers and others, are currently free to start, although fees may be assessed later.

McEvoy called charging fees “a significant step in the wrong direction.” He called fees a barrier to those seeking information that should be readily available to the general public.

“I am unable to understand how this amendment improves accountability and transparency when it comes to public bodies that operate in a free and democratic society,” he said. “We are living in a time when people are seeking more answers, and greater accountability, from public bodies and their governments, amplifying the significant role that freedom of information plays in allowing people to get information about what their governments are doing, and the decisions that affect them. To add another barrier of access at a time when transparency is deeply troubling.”

Further, he said, “I am troubled that there would be no ability for my office to waive an application fee if it is in the public interest.” Journalists seeking government information frequently request such waivers.

Positive aspects

Not all of McEvoy’s letter was negative.

He welcomed requirements relating to privacy impact assessments, the new privacy breach notification rules, and the duty for public bodies to have privacy management programs. 

“The inclusion of snooping offences is also a positive step. These and other constructive changes to FIPPA, discussed below, represent the most extensive amendments since 2011,” he said. “They will help ensure British Columbia keeps pace with other jurisdictions across Canada and globally.”

Another significant concern is that the right of access under FIPPA would no longer apply to certain electronic records, a change that would in turn limit public bodies’ duty to create records from electronic records.

“No persuasive case can be made for this exclusion for the public’s right of access, which would be out of step with Canadian access to information laws,” McEvoy said.

Further, the commissioner said, the proposals would exclude file metadata from access requests. Such information can be helpful to researchers in showing how public officials handled a file when requested. Metadata can also give valuable background information about a file itself.

“I am also deeply concerned that excluding a record of metadata will hinder the interests of transparency and accountability,” McEvoy said. “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.”

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