Discussion #2: The FOI Process



Freedom of Information (FOI) is an important democratic right. While many British Columbians may have heard of FOI, not everyone has -submitted a request, so you may not know how the process actually works.
The Freedom of Information and Protection of Privacy Act (FOIPPA) gives you the right of access to most government records. There are some records that you can’t request (like court records or records that are available for purchase), and other records that could be withheld when you do request them, but only where it’s spelled out in the law.

We also do our best to make information available through other channels so that you can access information about government programs that interest you at your convenience, and so that you can engage meaningfully with government on the things that matter most to you.

All of the roughly 2,900 public bodies in the province have a legal obligation to respond to your FOI request, and they also have to make sure their response is complete, accurate, and on time.

When you make a request to a ministry, your request goes to the professional staff at government’s central FOI processing branch (called Information Access Operations). When you make a request to bodies outside of core government, such as health authorities, universities, school districts and municipalities, you contact them directly.
This post outlines what typically happens when a request comes to Information Access Operations (IAO). You can expect the process to be very similar when you make requests to other public bodies.

Your request needs to be in writing, and it needs to be specific about the records you are interested in. When you are looking for your own personal information, we’ll ask you to prove your identity, to ensure we’re maintaining your privacy. You can only ask for someone else’s personal information if you are legally allowed to act on that person’s behalf (like when you are an executor).

Someone will get in touch to acknowledge your request has been received. If we have questions about your request, we will contact you by phone or email. This is done to ensure that you receive the records you’re looking for and avoid paying a fee for records you don’t want.

Once we have a clear understanding of what you are looking for, employees who might have records are asked to carry out a search. Employees conduct careful searches and provide any records responsive to your request to IAO. Sometimes, when the Ministry doesn’t have all the records you are looking for and they believe the records exist in another public body, your request might be transferred partially or in full. You will be notified if this is the case.

Once all of the records have been collected, specially trained analysts carefully review the records and work with knowledgeable ministry staff to recommend the removal of information that the law says can’t be disclosed. For example, FOIPPA says we can’t disclose information that is harmful to the personal privacy of another person. Other examples are that we have to carefully consider whether to disclose information that could be harmful to the conservation of heritage sites, intergovernmental negotiations, or law enforcement, among other things.
Next, the Ministry reviews the records and provides final approval on the response. Then you’ll receive a package of records that responds to your request by email or through the mail.

We think that FOI is an important public service, and not just a legal requirement. We take all of these steps to make sure that you get the information you are interested in, your privacy is protected, and you feel that you had a positive, cooperative experience.

Now that you know more about the complexity of what goes on behind the scenes, tell us how you think we can improve FOI service?

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20 responses to “Discussion #2: The FOI Process

    User avatar
    [-] Bob

    In July 2013, Information and Privacy Commissioner Elizabeth Denham published a status report on the BC Liberals’ open government initiative, Investigation Report F13-03. It took almost three years for that government to finally begin to proactively release cabinet and senior bureaucrats’ calendars, expense reports, and contract lists. But many other recommendations were ignored.

    Now is the time for the NDP government to implement those recommendations. Why should citizens have to ask for information and wait six weeks, six months or, in some cases, six years to receive it? Why should citizens have to wait through another consultation process, when the recommendations are waiting to be implemented? Proactive disclosure is the way to go.

    Recommendation 1: All ministries should implement s. 71 of FIPPA without further delay and establish categories of records for disclosure on a proactive basis. These obligations should be made part of letters of expectation for ministers and deputy ministers.

    Recommendation 2: The minister responsible for FIPPA should direct ministries to proactively disclose any final report or audit on the performance or efficiency of their policies, programs or activities.

    Recommendation 6: The minister responsible for FIPPA should direct ministries to proactively disclose the records enumerated in s. 13(2) of FIPPA on a routine basis within a set timeline.

    Recommendation 7: The Open Information website should be used as an online library to make information that must be disclosed across government more easily accessible by providing links to that information or a search function.

    Link to Commissioner Denham’s report: https://www.oipc.bc.ca/investigation-reports/1553

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    [-] Arpan

    Please include the time fame by which govt employee must respond to request.I have very bad experience dealing with Ministry of Advanced Education where they don’t have time frame for responding to requests.The time frame will add accountability to the position and answerable to tax payers .

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    [-] Veronica

    The time frame is 30 days as per section 7 of FIPPA. 30 days is 30 business days (it doesn’t include weekends and holidays). There are certain instances when a public body can get an extension to the 30 days. And there are separate time frames when there are third party notices (when a third party is notified that the responsive records contain information that pertains to them).

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    [-] Don

    I made an FOI request last year for some aggregate MSP data. I received email correspondence from the Ministry and that was handled well. That said, I was confident that this data existed, but perhaps it existed in a different format than what I requested. So, twice they came back with no records and I didn’t know how else to ask for it. I feel that it may have been more straight-forward for me to have a quick chat with someone to clarify the intent of what I was looking for, and then the data may have turned up. Given the number of requests government receives in a year and the costs associated with that, not sure if costs would go down for the sake of efficiency, as there will always be someone who will find a way to abuse the service.

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    [-] S

    In January 2017 my employer published employment and health information about me on the internet. I learned of this in May and formally brought it to their attention in June. They ignored me, so I filed a complaint in September with the OIPC. I also requested records from my employer and they declined releasing records. I filed a request for a review. In December 2017 I was advised that an investigator had been assigned (presumably regarding the disclosure). As of February 13, 2018 the internet posting was finally removed but I’m still waiting for progress on the complaint/review which won’t carry any penalties. In the meantime my personal information was available to the entire planet for an extended period of time (+1yr) and I was denied records. I understand that the OIPC is dealing with a lot of requests with limited resources. Perhaps the legislation should be more onerous on the government agencies and include penalties. Or BC could consider allowing Privacy Breaches to be accepted as a common law tort (like in Ontario)and processed in small claims court instead of having to go to BC Supreme Court under the Privacy Act and face a team of lawyers and threats of being assessed huge costs. Ideally the cost issue should be handled like the Human Rights Tribunal…neither side gets ordered to pay costs.

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    [-] Ourj

    Why can’t government just charge a flat access fee for FOIPOP requests like it does for other services and get rid of the complicated fees?

    The fee system for FOIPOPs is too complicated to understand in a way that I can hold my city accountable for. As a somewhat regular user of the system I don’t really know enough about my city’s records keeping to know whether the fees are actually reasonable or outrageous and you can forget going to the OIPC to complain about the fees because it will just add a year onto the time you have to wait for records to get to you. That is probably not part of this review but it would be nice to have a review of the rules the OIPC has to follow. Like for example why can’t we tell them that they have a 30 day deadline to solve complaints? All they are doing is reviewing what took the city 30 days to decide so how much time do they really need to take?

    Thanks very much for the chance to have my ideas heard.

    Sincerely,
    Ourj

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    [-] Maxine

    I think all government information should be public and available on-line. There would be no need for government employees to screen information. It should be public who has been identified to have been in violation of local bylaws. Having this information available to the public is a powerful way to discourage bylaw violations. When we make complaints, we have no way to find out if they are being followed up on and how. Violators are free to continue for years with no adverse consequences because local government do no want to spend the funds to prosecute. It is not possible to meaningfully protect the community or the environment under such a system.

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    [-] Maxine

    If this comment is not in the right place, please move it. It is terrible that current versions of BC laws are not available for free on line. This information should be available to anyone, regardless of their ability to pay. It would also be useful to have available on line current copies of legislation under consideration.

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    [-] Rajbinder

    Can’t you find the laws you are looking for online here? http://www.bclaws.ca/

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    [-] Kevin

    Jinny Sims recently cited a 91% completion rate to me of FOI requests.

    I want to point out that this statistic may be fed to you by senior bureaucrats but what they are not sharing perhaps is how they are achieving this result despite reduced staffing levels.

    My CUPE union work group has filed infrequent FOI requests over several years about office lease information and while they do eventually get completed, the process is so painfully slow that the information received is very much out of date by the time it is released. I have been told by employees of the office of the information and privacy commissioner that if we did not agree to extending the response times that our request would be deemed abandoned. While factually correct, your 91% number belies the fact that justice is not being served and the culprit is the gutting of this department under 16 years of Liberal neglect.

    Our most recent request was fraught with changing information and deadlines partway through the process, as well as incomplete information being relayed and then forwarded after the fact.

    We have a current FOI request being processed again, and we hope that there will be no more extensions under the threat of abandonment and stricter enforcement of deadlines for employers and their lawyers.

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    [-] Ross

    It seems the IAO would operate more effectively (for the public and the government’s purse) if all public/potentially requestable records were automatically copied / digitally archived with IAO in the first place. IAO would not need to gather all records at each request, and could instead focus on collating the records into an appropriate brief/release package and reviewing it’s validity internally, with far less necessary interaction and waiting on multiple other bureaucracies.

    Moreover, as much information as possible should be publicly released on a publicly searchable database with an effective, user friendly web interface to allow for the public dissemination and access to routine, non-privileged public information without a request (or in perpetuity after an appropriate request review has made it clear some or all of the requested information should be freely public without a request barrier).

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    [-] Ryan

    In August of 2017 I asked the Office of the Information and Privacy Commissionaire (OIPC) to review the responses I had received from Vancouver Coastal Health Authority (VCHA) and the University of British Columbia (UBC) and whether they sufficed to fulfill these bodies obligations under the act. The information was quite heavily redacted, so much so that I was not even given information that I already had been provided from each institution. As one of these institutions had processes in place to avoid creating records that were in the possession of the institution when communicating about contentious issues, I requested all communications regarding myself via the OIPC. This included messages sent and received on personal electronic devices, not considered to be in their custody or under their control as contemplated by section 3(1) of the Freedom of Information and Protection of Privacy Act (FIPPA). Since it was normal for the employees to use their cell phones for texts and social media messages regarding students, this information was necessary.

    Further to using phone calls and personal devices to avoid disclosure, VCH and UBC also simply refused audit the back ups of emails on the system and instead simply asked employees to forward any email they retained, allowing employees to delete any content they did not wish to disclose. Furthermore UBC and VCH used the policy as written to almost completely redact all information they did forward to me. When I appealed to the OIPC I was told that sections like 13, 14, and 22 allowed them to avoid disclosure. I was told by an employee of this office on March 20th, 2018, that conversations about policy were not subject to the act. When I reported that the employees of one of these institutions had an inaccurate knowledge of their own policy and often claimed that things were policy that were not, she stated that is just “unwritten policy”. Given my decade of employment with the federal government in fields that work with policy, procedures, guidelines and normalized behaviour in the institution, I can say with some authority that unrecorded policy is not, in fact, policy. I also was told that section 13 meant that any communication regarding policy or how the body came to a decision could be redacted as “otherwise they would simply avoid creating a written record of the decision”. When I pointed out that broadly interpreting the section this way and allowing non disclosure was effectively the same thing, the employee of the OIPC changed the subject. If a public body is permitted to avoid disclosure of information about how they came to a decision or policy then not information is auditable, as what is any conversation truly about in an office? I am not going to the OIPC about how to use a particular piece of software or about how lunch was yesterday.

    During this process I frequently lamented that public bodies can avoid accountability under FIPPA by not creating records.

    Privacy Commissioner for BC published Investigation Report F13-01 which addresses the duty to document. For example, on page 3 she notes the following:

    “In the course of this investigation, we have seen evidence of the practice of “oral government”, where business is undertaken verbally and in a records-free way. There is no requirement in FIPPA to document these activities. Without a duty to document, government can effectively avoid disclosure and public scrutiny as to the basis and reasons for its actions. The lack of documentation undermines the ability of citizens, journalists and the public to understand the basis for government’s actions on any particular matter.”

    I request that you use my case with UBC and VCH as a case study in how bodies related to government in BC avoid public disclosure under the current legislation and then shore up the gaps. The parts of the act that allow so much redaction, including section 13. I also appeal to the government to get ahead of the technology curve with the act and ensure private devices and accounts are subject to disclosure policies if they are used to communicate about business. Lastly I petition the government to ensure that the legislation has some teeth, both for the employee and for the institution, as otherwise each will pressure the other to be responsible for their behaviour. Given the technology involved in the Mueller investigation by the FBI in the USA, I don’t believe it is hyperbole to state that our democratic freedom is dependent on transparency and enforceable FOI/ATIP rules.

    Thank you.

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    [-] Jim

    In Report F16-01, in the section of the report titled Commissioner’s Message, Commissioner Denham articulated that an essential component of FIPPA is the duty to assist citizens who seek access to records. Commissioner Denham stated that municipalities must make every effort to assist applicants and respond without delay, accurately and openly. Additionally, Commissioner Denham provided that access to information is a public service like any other program offered by a public body.

    Given that access to information is a public service like any other program offered by a public body, there should be no fees attached to FOI requests.

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    [-] Lorraine

    The complexity of the process is not my problem. Simplifying it, or not, is your responsibility. My responsibility as a citizen is to tell you that, as a citizen, I expect a transparent government that respect my right to access to information. So keep up the good work.

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    [-] Dustin

    Give better funding to the OIPC to deal with complaints/requests for review in a timely manner — a half-year (or more) wait for an answer is a long time to wait when those documents might be pertinent to a particular moment, especially when the public body might take that issue to court, further delaying. And create penalties for public bodies when they wrongly deny records or refuse to co-operate on fee waivers, otherwise they have no reason not to try to disincentivize people requesting documents by creating roadblocks via the OIPC. That in itself could free up some of the OIPC’s time to deal with issues that may actually be in dispute. Furthermore, the question of whether or not to dole out information based on privacy/access to information principles should apply to all public bodies — B.C. Coroners Service should be beholden to the OIPC like any other public body.

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    [-] Susan

    Ensure government and government body staff are all trained, management understand an are aware of the importance of FOIPPA and that audits are done to ensure records are in fact kept as required so they can be requested.

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    [-] Jim

    It should not be the employees that search their own records.

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    [-] Stephen

    Proactively release all records previously withheld for copyright. OCR all previously-released and future records and upgrade the search function so those records can be meaningfully searched (e.g., by ministry, request subject, and/or by content, as chosen by the user).

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    [-] Vincent

    I am a private individual. I thank you for this opportunity to comment on the F.O.I. process. In my opinion over time and particularly during the the reign of the last government this process has become overly complicated, corrupted, and high jacked by gov’t officials trying to subvert the process and cloaking their misdeeds and incompetence with lawyers ..at the tax payers expense.

    Our right to know what is going on in government is easily circumvented by officials working in the departments where the information around wrong doings is being requested. This is easily accomplished because there appears to be no oversight, penalty, or systems of accountability that I know of.

    I have been requesting information supporting questionable land uses which have been licensed and permitted by local government bodies which benefit a private party and violations of the Local Gov’t Act for some time. I’ve been met with lengthy delays, claims of non existent or disappeared information, obfuscation and objections to my request reciting parts of of the act which had little or no bearing on the request. On appeal I’ve again experienced delays blamed on lack of staff.

    Upon winning appeal only minimal information was released along with the requirement for a whole new application.
    These circumventions of process can go on…forever. Apparently I’m not the only one having these kinds of problems.
    https://thetyee.ca/News/2018/04/02/BC-Gov-Withheld-Fracking-Info/

    Another problem I’ve come across lately is the release of electronic information in the form of pdf scans, parts of which, for all intents and purposes are illegible. I believe that this is because electronic scans and copies are intentionally being taken of generations of poor copies instead of scans of the original documents or at least legible copies . I say this because in some overlapping requests, I have received both legible and illegible copies of the same information..depending on their perceived sensitivity at the time.
    In reading the comments on this page I notice that many of those calling for more Freedom of Information and openness in the process are being voted down. Gee I wonder who that benefits.

    Good luck and best wishes to all those good people attempting to root out and expose this systemic corruption. It must be done if we’re ever to have legitimate governance.

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    [-] Jennifer

    Prisoners’ Legal Services (“PLS”) would like to see the BC Freedom of Information and Protection of Privacy Regulation (“FOIPPR”) s. 4(1) amended to add “a lawyer” to the list of representatives who may access private information on behalf of an individual.

    Such an amendment would allow PLS and other legal entities to obtain a client’s documents upon their instruction, removing the administrative requirement to first receive a written consent on each occasion.

    PLS submits that the confidentiality requirements and professional oversights for lawyers protect clients from potential misconduct: lawyers are obliged to act in accordance with professional ethics and standards of conduct set out in the Legal Profession Act, the Law Society Rules and the Code of Professional Conduct for British Columbia (the “BC Code”). Clients would be protected from any potential misconduct posed by this amendment by the complaint and disciplinary procedures of the Law Society of British Columbia.

    The BC Code requires lawyers to “hold in strict confidence all information” of a client. Lawyers “must not use or disclose a client’s or former client’s information…without the consent of the client or former client” (3.3).

    A lawyer who is accused of violating these rules of professional conduct may be subject to the complaints and disciplinary process by law under the Legal Profession Act, as well as the Law Society Rules. PLS submits that this overall structure of legislation and professional practice policy provides sufficient protections to clients to allow lawyers to access a client’s private information upon their instruction.

    Currently, PLS is required to obtain a signed consent form from our prisoner clients before we are able to receive client documents from BC Corrections. Clients have to interact with BC Corrections staff to sign a release form, and then have corrections staff deliver it to PLS. Because BC Corrections regulates all contact between PLS and our clients in these ways, delays and inefficiencies are created from this administrative burden on all parties involved.

    The consequences of these inefficiencies can be dire. PLS assisted provincial prisoners with 1,123 issues in the past year, many of which require documents that can only be obtained via the freedom of information process. The delays inherent in this process hinder PLS’ ability to assist clients in a timely manner, particularly with issues involving their health and solitary confinement.

    The latter engages liberty rights under s. 7 of the Charter. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) states that solitary confinement for over 15 days is “torture or other cruel, inhuman or degrading treatment or punishment,” and should be prohibited. The Mandela Rules add that solitary confinement should be prohibited for prisoners with “mental or physical disabilities when their conditions would be exacerbated by such measures.”

    PLS requires our clients’ segregation documents in order to advocate for their liberty rights. More often than not, the freedom of information process takes more than fifteen days. Moreover, this does not include the time that PLS requires to advocate on behalf of our clients for their removal from solitary confinement. Allowing lawyers to access documents as our client’s representative under FOIPPR s. 4(1) would go a long way toward ameliorating unnecessary time in solitary confinement, along with other time-sensitive legal issues.

    It is our understanding that BC Corrections supports this amendment, as the current process poses a fairly significant staff burden on BC Corrections as well.

    Thank you kindly for your consideration of our proposal.

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