“In a democratic government, this should not be allowed”: Critics Blast Information and Privacy Law Changes

On October 18, the BC NDP government introduced Bill-22, a series of major amendments to the Freedom of Information and Protection of Privacy Act, or FOIPPA, to the Legislative Assembly. Critics, including journalists, advocates, and opposition politicians, have blasted the bill as a serious step back in government transparency.

FOIPPA was first drafted in 1991 by the NDP government, created with the purpose of giving citizens the abil- ity to access information, either per- sonal or general, that the government holds, as well as protect the privacy rights of British Columbians.

Amendments listed in a state- ment from the government’s website mention that the province intends to strengthen digital data privacy, and better protect the public’s personal information with the Bill. Also mentioned in the statement was the intro- duction a “modest” fees for freedom of information (FOI) requests.

An FOI request is made when a person applies to gain access to government records. Upon receiving a request, a public body is required to release the records requested with narrow limitations. The public body may decide to charge a fee only for large requests, but fees may be waived if the records are in the public interest, or if the applicant cannot afford the fee for a valid reason. FOI requests are commonly filed by journalists, researchers, advocates and non-profits, opposition political parties, and citizens looking for particular information.

Premier John Horgan said in an October 21 press conference, “We haven’t settled on a fee. No fee has been set, and no commitment to actual- ly having a fee is in the legislation.” Citizen’s Services Minister Lisa Beare, the cabinet member in charge of the bill’s passage, admitted that she was in favour of having a fee that is around $25, alluding that it is more likely that there will in fact be a fee imposed.

BC FIPA, a non-profit whose mission is to defend citizens’ infor- mation and privacy laws, wrote in a letter to the government that “[Bill-22] would extend the ability of current and future governments to keep people in the dark about vital matters of public interest.”

Michael McEvoy, Commissioner of the government’s independent watch- dog on privacy and information rights, the OIPC, said, “Application fees pose a real barrier for many who seek information that should be readily available to the public.” McEvoy also said that he remains “unable to understand how this amendment improves accountabil- ity and transparency when it comes to public bodies that operate in a free and democratic society.”

Bill-22 has also struck a note of controversy with Ujjal Dosanjh, former Attorney General and Premier of British Columbia, later federal Minister of Health, who also served on the legislative committee that drafted the original FOIPPA in 1991. The Nest was able to secure an interview with him, where he commented on Bill-22 relative to FOIPPA’s original purpose.

When asked what FOIPPA was intended for back in the 90’s, Mr. Dosanjh said it was, “meant to [secure] everyone’s privacy, of course. But it was also supposed to be so that people could have access to whatever [government-held] information they wanted about themselves and government business.”

Mr. Dosanjh commented that “the most difficult and disappointing change is the new fee to get information. There was no fee before. The way I see it, there are thirteen territories and provinces in Canada. Seven of them have no fee. Six do. Now, British Columbia will be one of them with a fee. I believe that this is a backwards step; people should be able to access government information free of charge. In a democratic government, this should not be allowed”.

Although the fee is a highly controversial amendment to FOIPPA, there is another new amendment that caused its own outrage. Under section 30.1 of FOIPPA, personal information held by a public body must be exclusively kept in Canada. This law was originally put in place with the assumption that citizens’ personal information would be protected under Canadian privacy laws. However, the new amendments repeal section 30.1, making it possible for public data to reside on foreign countries’ servers.

The government defended their decision about repealing section 30.1, as they said on BC’s official website, “Data-residency requirement changes will bring BC in line with other jurisdictions by removing restrictions that prevent access to digital tools and technologies. These changes will increase access to technologies and streamline service delivery for public bodies.”

However, the OIPC Commissioner disagreed with the government, saying, “What is exceedingly troubling, however, is that the government now proposes to allow public bodies to send British Columbians’ personal information outside Canada without explaining how they will properly protect it. Without concrete alternative protec- tions for people’s data, the government is effectively asking the Legislative Assembly for a blank cheque to eliminate the current restrictions on public bodies accessing and storing people’s personal information outside of Canada.”

Liberal MLA for Kootenay-East, Tom Shyptika, was quoted on Hansard giving his concerns, “We look at some of the world’s most major data breach- es over the last eight years. I highlighted last week Facebook, LinkedIn, Alibaba, and Yahoo. There’s a long list of data breaches that have happened over the last eight years, and this is in the billions of people.”

In the same interview, Mr. Dosanjh also commented on the data residency amendment, stating,“It is absolutely reprehensible for a govern- ment to [change the requirement]; it’s a betrayal of our sovereignty.”

Bill-22 will continue to be debated in the legislature over the coming days and weeks, and with an NDP majority government, is expected to pass and make some of the most consequential amendments to FOIPPA in the law’s history.