A B.C. government body has been told to abide by the law in a request made to it under the provincial Freedom of Information and Protection of Privacy Act (FIPPA).
The order came in a mediation summary from B.C.’s Information and Privacy Commissioner (OIPC) Dec. 30.
While the decision does not name the agency in question or the person who applied for the information, the message to the agency was simple: obey the law.
The decision, entitled “Proper treatment of a request for records,” said the person had asked the public body for records concerning a transaction involving it and third parties.
The government body told the woman that it would treat her request as a general inquiry.
“When she protested that she wanted her request treated as formal request under the Freedom of Information and Protection of Privacy Act (FIPPA), she was told the public body would respond as it saw fit,” the decision said.
She complained to the commissioner’s office, emphasizing that she had wanted her request to be subject to FIPPA to ensure the public body responded to her request within the legislation’s timelines.
The OIPC said that, if a request for records is made in writing and meets the other FIPPA requirements, a public body is required to treat it as a FIPPA request unless another form of access is available.
The OIPC concluded the requests the woman submitted were access requests within the meaning of the legislation and that the public body was obligated to respond to them in the manner required by the law.
The OIPC told Glacier Media such cases are not uncommon and often arise from misunderstanding on the part of the public body when an applicant is not clear.
“OIPC case review officers advise public bodies that the applicant intended for the request to be under FIPPA. Notifying public bodies of their obligations under FIPPA at this early stage typically resolves the matter,” the OIPC said in a statement.
It added cases are generally resolved early in the complaint process.
“However, if a public body did refuse to comply with their legal obligation to respond to a request, the commissioner has the ultimate authority to issue a legally binding order to ensure they do so.”
Situation not new
The BC Freedom of Information and Privacy Association also said it's not unusual for this to happen.
The association, a system watchdog, said the act is broken and needs fixing to avoid such cases.
Executive director Jason Woywada told Glacier Media that, under FIPPA, public bodies have a legal duty to assist applicants and that categories of records are to be established that enable the routine release of records.
“It's important to highlight that in some instances public bodies and bureaucrats may be acting in good faith and want to release the information more quickly through an informal routine release of information than through a formal (freedom of information request) process,” he said.
However, he added, formal requests were never meant to be the default process for getting information from public bodies.
“However, informal processes have no documented timelines or recourse,” Woywada said. “If the information is routinely releasable, they can establish the category of records and proactively release the information.”
That falls under Section 71 of the act, he explained.
“There is little to no transparency in the identification and selection of categories of records that are to be routinely released,” he said.
A matter of trust in government
Woywada said the situation is leading to a decline in public trust in government combined with the legal duty to assist information requesters.
He said to make a request, it is first necessary to do research to see if information isn't online and already available.
“If it is already available or previously released, it should be a simple matter to assist.”
Woywada shared a research case on informal requests that can be read online.
“I start with a low level of trust because I don't have access to the information and presume something exists that the public body controls that they are withholding for reasons that aren't readily apparent,” he said.
“If the information I seek is sensitive or controversial, that trust may be even lower,” he said.
Then it becomes a problem that creates friction, he explained.
“Rather than being sent information (that I'm told is readily available) through the formal request, it’s suggested I drop a formal request and move to an informal system with no timelines or recourse,” he said. “Rather than reduce friction, the referral actually further erodes trust and feeds into conspiratorial thinking.”
Woywada said informal requests may be an option in very limited circumstances without consequence.
“But, if it is important enough for you to seek the information from a public body, it is likely important enough that you want recourse if you suspect that a thorough search isn't conducted, or the release of information is inadequate.”
“Bottom line is: Section 71 needs an overhaul,” he said.
