ELC Wins case!

On December 14, 2005, the Office of the Information and Privacy Commission ruled in favour of the Shawnigan Lake Watershed Watch Association (SLWWA). The Commission Adjudicator ordered Government to drop the fees that Government had previously demanded before it would produce requested documents. The documents related to the sale of Crown lands for residential development around Shawnigan Lake -- development that could threaten the quality of drinking water drawn from the Lake.

The Adjudicator ruled that a partial fee waiver was appropriate because the SLWWA sought the documents because of environmental and health concerns, which are matters of public interest. The Adjudicator noted that Government had only “belatedly” acknowledged that the 8500 residents who drink water from the Lake were a sufficiently large group to constitute the “public” for the purposes of a “public interest” fee waiver. Throughout most of the appeal process, Government had taken the egregious position that 8500 people were not a large enough percentage of the BC population to constitute a “public interest”.

The Adjudicator went on to rule that any remaining fees should be waived on the grounds that the group could not afford payment.

The Adjudicator made some telling comments about Government (Land and Water BC) in the course of her decision:

Land and Water BC (LWBC) failed to take into account Shawnigan Lake Watershed Watch Association’s (SLWWA’s) purpose in making the request and to make reasonable efforts to assist the applicant…

LWBC is, in my respectful view, being disingenuous in suggesting that it is entitled to refuse to waive the fee because of SLWWA’s alleged delay in demonstrating that it could not afford the fee, when the evidence is that LWBC itself waited for months to ask for proof, and longer still to suggest this would be a legitimate consideration in its decision to waive the fee or not.

LWBC does not appear to have reviewed the responsive records until November, 2004, months after it issued its decision to deny a public interest fee waiver. I do not see how a public body can properly determine whether or not records relate to a matter of public interest if the public body’s decision-maker has not reviewed them or been given evidence, based on direct knowledge of the records’ contents, as to their nature and content. There is no evidence before me that LWBC had either kind of factual basis on which to conclude as it did.

I am also of the view that LWBC did not make reasonable efforts to assist SlWWA with its request.

Although SLWWA said from the start that it wanted to view the records and would save the shipping fee by visiting LWBC offices, LWBC ignored these offers to reduce the fees and continued to issue fee estimates that included copying and shipping costs… Because LWBC did not take these basic steps at the beginning of the process, but waited until well into mediation, SLWWA was left for many months without any knowledge of the Shawnigan Lake file and of the reasons behind LWBC’s stance on the public interest matter.

The complete decision is found at the website for the BC Office of Information and Privacy Commissioner, under Order F05-36.

Mary Desmond of the Shawnigan Lake Watershed Watch Association responded to this case:

For the past year, the services provided by the University of Victoria Environmental Law Centre have been invaluable to our organisation, SLWW [Shawnigan Lake Watershed Watch].

Ours is very much a grass roots group concerned primarily with local and provincial issues that affect the welfare of our community watershed, Shawnigan Lake. Our financial resources, derived mainly from membership donation, are very meagre, and therefore the assistance of the Environmental Law Centre is greatly appreciated.

We would like to commend the excellent endeavours of law students, Jamie Wood and Karla Point, and their most capable instructor, Professor Calvin Sandborn, undertaken on our behalf. Without their expertise, we would have been forced to abandon our FOI inquiry long before any hope of obtaining judicial satisfaction might be reached. The documents and materials SLWW is attempting to view relate to local land use decisions – an issue of considerable significance for any water supply community.

We hereby state our unreserved support for this programme.

See the article (ELC Student Files FOI Appeal Submissions - Victoria, BC. May, 2005) for background information on this case.