Thursday, December 08, 2011

 

"This cannot be allowed to stand ... " BC gov't can't hide ministers' records from FOI with 'Out of Scope' claims

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By Stanley Tromp
The Hook (Tyee) - December 8, 2011

[Editor's note: When a big ruling on Freedom of Information requests came down yesterday, The Tyee sought an expert opinion on what it meant -- and that expert happened to be at the heart of the case. Here is what Stanley Tromp emailed us as an explanation.]

The B.C. government cannot hide parts of ministers' records from Freedom of Information Act requestors with the claim that these are "out of the scope' of the law.

That order came down on December 7 from adjudicator Jay Fedorak in the office of the B.C. Information and Privacy Commissioner. The government has 30 days to appeal to court.

"It looks like the government was trying to create another, bigger hole to hide information, and thankfully they got shot down," said Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association (FIPA).

"The government chose to use one computer program for all these files, and run it out of the minister's office, then the Act applies to it. The provincial government was hoping they could get ministers’ offices moved outside the law, the same way they are in Ottawa. The Commissioner's office wasn't buying it."


In April 2009, this reporter filed an FOI request for the daytimer of meetings of the B.C. transportation minister from January 2002 to June 2004. (That is, about 1,200 meetings noted for Judith Reid, then 900 entries for Kevin Falcon. These are just mentions of who the minister was set to meet with, and what date and time, with no subject matter.) The hope was that the records might shed a bit of light on the events surrounding the BC Rail controversy and the December 2003 police raids on the Legislature.

The Ministry released some of the records (although it could not locate any from January 2002 to January 2003). But it withheld five per cent of the daytimer entries, those relating to the Minister’s MLA constituency or party caucus activities, and so are outside the scope of the FOIPP Act. The Speaker of the Legislative Assembly endorsed the ministry's claim. {Snip ... }

"I do not accept the Ministry's characterization of individual calendar entries as each constituting a separate record," the adjudicator wrote. "In this respect, I agree with the journalist that each calendar is a single record (it was generated by the Ministry as such) and that, if the original records were paper day-timers or calendars instead of electronic calendars, there would be no dispute about this."

As well, some of the minister's daytimer entries were withheld under FOIPP Act section 17 (when release could harm the government's "economic interests"), and section 22. The government also withheld the dates that the minister met with the B.C. ombudsman, using an "out of scope" claim, which the OIPC adjudicator rejected.

The next stage. Such are the claims that a record portion is outside of the scope of the law. Yet there is a separate but quite similar concept, which is likely the topic of the next legal battle.

For years, in response to FOI requests filed by myself and others (such as environmental groups), the government sent back records with sections blanked out, with a little "o/s" handwritten upon the blanks. This is meant to denote "out of scope of the request," i.e. the subject matter is not relevant and so "the information is 'not responsive' to your request."

Of course, being unable to see the "o/s" parts, the applicant has no way of knowing if the deleted portions were truly "out of scope" or not, unless he/she appeals to the commissioner (and waits two years for a ruling), which very few do.

Acting brazenly as a law unto themselves, bureaucrats in principle could split one record into 20 records, with 20 separate FOI decisions, one for each. I argue that a single indivisible record is a single indivisible record, to no avail. As the OIPC ruling noted, "The journalist also says that, if it is possible for the government to arbitrarily categorize parts of a requested record as individual records, then this could be done in almost any case where electronic records are involved."

The B.C. Freedom of Information and Privacy Association astutely wrote about this problem in its submission to the 2010 Legislative committee review of the FOIPP Act:

"FIPA has run into repeated instances where public bodies have removed large parts of records on the grounds that they are "out of scope" of the request.

"'Out of scope' is not an exception listed in Part 2 of the Act. Nor do officials ever state that the requested records are those listed in Sec. 3(1) of the Act as not being subject to the Act. What this means is that officials have created their own unlimited new exception to the requirement to release records. This cannot be allowed to stand. . . . What happens now leads to the suspicion that what is described as 'out of scope' may be information the public body does not want to release, but cannot find any legal reason to withhold."

Most troubling is that (according to statistics supplied to me by the Labour ministry), the "out of scope" claim had been applied to withhold information in 345 requests over the 2001-2010 decade, that is, five per cent of the total requests, and the number has been rising. FOIPP Act law reform and regulation is urgently needed for this problem. This practice may appear to be a bland, minor, arcane point of administrative law and so elude notice, but I believe that it has over the years caused much vital information to be concealed from FOI applicants and the public.

Stanley Tromp is a Vancouver-based journalist who regularly contributes to The Tyee.

Source is HERE:


http://thetyee.ca/Blogs/TheHook/2011/12/08/Govt_Cant_Hide_Ministers_Records/

RED FLAG:

Public Inquiry ... Now! 

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Comments:
Mary, I shouldn't have to remind you about the digital communications that were ILLEGALLY sent to a data destruction outfit in the states by Gordo the Goon during the last election. I would imagine that even if the government's own server data was scrubbed, that copies of stuff still exist elsewhere on the digital trail through cyberspace, if anyone had the will and the technical ability (which there are people with) data is almost impossible to destroy once it passes through the cyber-highway, there just has to be the will to find it....read the Cuckoo's Egg by Clifford Stoll, sometime which describes how some hackers with great skills were tracked down half way around the world, in spite of the efforts they took to hide their tracks.
 
Yet another dirty bunch of fingers caught sticking themselves into the wall of silence that guards this band of pirates from having to face the full scale reaction that would follow soon upon the truth getting out about what they're doing inside the halls of governance.

It's a friggin' code with these people--come hell or high water. No one talks. No consciences beyond that. No real sense of ethics other than that which derives from an excessive commitment to retaining power.

But it can't go on being so abusive of the democratic process. It's too secretive and too opaque--and it won't go on; not like this. With all the covering up and hiding around. i mean, if you step back, you'll see they have already convicted themselves just by their own actions in the way attempt to conceal documents. Mere ministerial travelogues have been redacted. Hmmm--now i wonder why that is?

Anyway, they can try to play dough^^$ee^^dough all they want. They can't stop what's going to be done to put things right. And one day, there's going to be an accounting, Mary, i can feel it
coming.

Now we should also prepare to act to reverse title and retake ownership.

We've never been closer and they know it.

Something's gotta' give, and soon.

If nothing else, the frontice pieces will have to step forward to face the electorate of this province in a couple of years.

Then again, all of this does make one wonder if the bclibs could ever really afford to lose a general election--which they most certainly will if they fight the next one fairly and squarely.

Be well.
 
Very astute observations, Chinese Sneakers.

Thanks for sharing.

I wonder if you've read the Timothy Findley novel, "Headhunters"? Somebody gave me a copy of it, about 10 years ago, and I had to read it twice before I began to understand ... and it's still working inside my memory box.

It offers an explanation of how elite groups form to enjoy a particularly gruesome form of entertainment (this was before we knew about Pickton, even), their very participation guaranteeing airtight secrecy.

It's a challenge that keeps on giving. I wonder if you've read the book. It's pure speculation but the theme is one which recognizes and tackles the inexplicable.
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No, sorry. Have only read, The Wars.

Not hard to imagine that he knew of this "CLUB," or the Torontonian branch of it.

Also think you're right to see a connection to the pickton murders. Witness how the province refuses to kick in for legal representation so that the genuine voices from the area might then give their testimony at the oppal commission hearings. Nor has a single player who had anything to do with the cases been anywhere near the oppal microphone to explain what went wrong. Wonder what's that all about--?

Cheers.
 
Chinese Sneakers,

I didn't think you had read it ... in fact, I've never met anyone who's read "The Headhunters".

But I was hoping you had -- or would -- read this book. There's a mighty message tucked into it so you can see how the game works, why it's allowed to work by the very people who ought to be stopping it ... and the rest is left with us.

My imagination had never stretched to include evenings of fine wine and torture as entertainment ... not by judges, doctors, high-profile public figures ...

my impression (after two readings) was that this phenomenon occurs naturally(!) wherever powerful people come together to overwhelm the common good. Overwhelm? Heck, we don't even know these macabre things are happening. It took me 2 readings to figure out what Findley was getting at ... and I still don't feel that I know. Nor do I know exactly why decent people would frequent "Piggy's Palace" on the Pickton Farm in its heyday. Shudder.

But, like I say, "Headhunters" offers an explanation for the inexplicable.

Take the question of "X" in regular BC affairs, or federal affairs who, for example: no matter what he does, how much evidence he leaves, never is arrested or charged ... how exactly does that work? We all know the kindergarten version, but not the whole story. Seems to me that Findley opened that door just a little bit for us.

You've already picked up the scent when you realize that "Nor has a single player who had anything to do with the cases been anywhere near the oppal microphone to explain what went wrong." We see it all the time and we seem to get accustomed to it.

I bet Chapters has a cheap (used) copy of "Headhunters" by Timothy Findley that they'll drop on your doorstep. I hope others will pick up on this, too.
 
they can do anything they want to as long as we let them.
 
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