Transforming BC’s Freedom of Information Law

Filed in: Freedom of Information (FOI) Government Healthy Watersheds and Airsheds Law reform Pollution Province-wide Research | by
FOI-2016

ELC students Rachel Gutman (far L) and Rebecca Kantwerg (far R) join Legal Director Calvin Sandborn during a media interview about the ELC’s request that the Information Commissioner release documents concerning a polluted aquifer

Thanks to the ELC, BC has improved information and privacy law regarding the government’s obligations to release information to the public.

In one of her last acts before leaving office, Information and Privacy Commissioner Elizabeth Denham responded in late June to an ELC complaint and ordered the Ministry of Environment to release information related to a polluted drinking-water supply near the city of Armstrong because it was in the public interest.

The order was possible due to the result of previous ELC complaints that had led the Commissioner to release a new interpretation of section 25 of the Freedom of Information and Protection of Privacy Act last July. The old interpretation only required public interest documents to be released if it was “temporally urgent.” The new interpretation requires government to proactively disclose all public interest documents, even when there is no urgency. The Commissioner described the change as “arguably the most important interpretive change to FIPPA in recent years.”

We couldn’t agree more – and neither could our clients.

“It is difficult to find the words to express how grateful we are for the enormous effort you have made,” wrote Al and Cathie Price of the Save Hullcar Aquifer Team. “You have given us hope and confidence that we can eventually succeed in our goal of having safe drinking water, if not for our generation then certainly the next.”

But while the interpretation had changed, the practice of releasing documents has been a bit slow to catch on. Underlining the importance of the change, in her most recent ruling, the Commissioner not only invoked the new interpretation to order government to release public information, she advised government of its duty to routinely disclose information that is in the public interest to disclose.

Three different ELC cases highlighted the problem to the Information Commissioner:

  • In 2012, in response to an ELC complaint, the Information Commissioner ruled that government broke the law when they failed to warn the public about the unsafe Oliver dam that eventually collapsed. She also recommended that the law be changed “at the earliest opportunity” to make government’s duty to disclose a more proactive duty.
  • In 2014, the ELC asked the Commissioner to order the release of Mount Polley Mine documents, which led to the July 2015 decision that government must proactively disclosure all documents “in the public interest,” even when there is no temporal urgency for release, which had been the previous interpretation.
  • In 2016, while obtaining pollution abatement orders to protect public drinking water from dairy farm pollution in Spallumcheen, the ELC requested that the Information Commissioner invoke section 25 to order the release of soil nitrate data relevant to the drinking water contamination – and she did. Around this same time, the ELC also made submissions to the Legislature’s Committee on Freedom of Information, which incorporated some of our law reform recommendations in its final report.

We believe this positive change in BC’s information law is an important development that enhances government transparency and accountability.

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