Opinion: Commissioner also says nothing has improved since NDP brought in an application fee, which was touted as a tool to reduce delays
VICTORIA — B.C. Information Commissioner Michael McEvoy delivered a withering blast at the New Democrats this week over their flagrant disregard for the Freedom of Information and Protection of Privacy Act.
He found that the New Democrats failed to respect the response times written into the law more than 5,000 times over three years.
The 85-day average lag time was the longest since the commissioner’s office began recording response times 13 years ago under the previous B.C. Liberal government. Moreover, the greatest offender was the office of the premier, mostly under John Horgan but also through the early months of Premier David Eby’s tenure.
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McEvoy’s office reviewed compliance with the Act between April 1, 2020 and March 31, 2023, focusing on the statutory requirement that government responds to information requests within 30 business days.
“There are exceptions to the 30-day rule where public bodies can apply or request an extension,” McEvoy noted in a report released Wednesday. “But FIPPA clearly establishes 30 business days as the expectation for response.”
The review found that “the likelihood an applicant’s request would be met within 30 days was only slightly better than the flip of a coin. Specifically, government met the 30-day time frame in just over half of the cases it processed during the past three fiscal years.”
By comparison, says McEvoy, “10 years ago government met the 30-day benchmark in nearly three quarters of cases closed.”
That would be when New Democrats surfed a wave of self-generated indignation over the access to information failings of the government of then-premier Christy Clark.
Today, says McEvoy, “it is deeply concerning that in more than 5,100 cases over the past three years, government exceeded the time allowed to respond to a request without legal authority to do so.
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“These cases represented nearly one out of every five requests closed. In other words, government is systematically failing to abide by the law.”
The commissioner noted that some ministries were better at responding than others, citing finance, social development and public safety. Health, mental health and children and family development were the greatest laggards.
Then there’s the performance of the office of the premier in the last seven months under John Horgan and the first five under David Eby.
Over that span, the premier’s office took an average of 269 business days to respond to requests for information, which is 10 more business days than a typical calendar year.
McEvoy discounted the government’s excuses for its dismal performance, saying even with the pandemic it has had plenty of time to increase staffing and resources to clear the backlog.
He also dismissed the government’s plea that it should be given credit for closing some overdue requests, which would have reduced its average processing time to 38 business days.
“There is an obvious difficulty with this argument, best illustrated by the baseball player who argues that if you just ignored his strike outs, their batting average would look so much better.”
Ouch.
“If government expects citizens to act within the law, so, too, must it,” wrote McEvoy in a swipe at lawyer Premier Eby, his lawyer deputy minister, Shannon Salter, and the other lawyers in the premier’s office.
“A government responsible for enacting and enforcing laws must also obey them. It brings both the law and government’s actions into disrepute when it simply ignores the legal requirement to respond on time to an access request or to get permission from the commissioner to extend the time.”
The commissioner’s rebuke of the NDP’s performance on access to information was doubly damning because McEvoy was present at the creation of B.C.’s freedom of information legislation under the 1990s NDP government. He was a key staffer in the office of NDP attorney general Colin Gabelmann, who oversaw what was then regarded as the best legislation of its kind.
McEvoy’s term is up March 31, and he has already announced he will not be seeking another term, which is a loss.
He closed this latest report with a half dozen recommendations to the New Democrats on how they can live up to the letter of the law.
He also took a parting shot at the NDP decision to bring in a $10 fee for applications for information, saying the one thing it has not done is “yielded quicker responses for applications.”
Yet when the New Democrats used their majority to ramrod the fee through the legislature in late 2021, they justified it as a way to expedite the application process.
“We’re going to be able to provide access quicker to people,” then cabinet minister Lisa Beare assured the house during debate on the legislation. “Absolutely, it is going to speed up the time to respond.”
The debate back then also provided a window into the NDP’s real view about access to information, when Horgan pushed back against Opposition requests for more information from his own office.
“I mean get real,” he snapped. “Who cares?”
The New Democrats, basking in the glory of the latest opinion polls, probably assume that will still be the view of the public.
vpalmer@postmedia.com
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