Public promises, private practices

"The fundamental principle must be this: Government information belongs to the people, not to the government.

This means, among other things, that all citizens must have timely, effective andaffordable access to the documents which governments make and keep."

Opposition leader Gordon Campbell, 1998

Submission by IntegrityBC

Special Committee to Review the Freedom of Information and Protection of Privacy Act

January 29, 2016

Introduction

IntegrityBC's submission will take a slightly different tack to the more conventional approach.

There will, of course, be recommendations.

But think of it also as a scrapbook of two decades of FOIPPA experiences. A walk down memory lane, if you will.

You will read the voices of your colleagues, past and present. The voices of opinion leaders, editorialists and columnists. And, most importantly, the voices of British Columbians.

These are the voices that should resonate with you as you write your final report.

"BC Liberals will reform how government works from top to bottom, to create the most open, democratic and accountable government in Canada."

– 2001 BC Liberal Party Platform: A New Era for British Columbia

Public promises...

From Atlantic Canada to B.C., party leaders and premiers have recited the same slogan for more than a decade now: they will run “the most open and transparent government inCanada.” They know the line by rote.

Each understands that the public expects that standard from candidates during an election and yet are often let down by those same candidates once elected.

There's a common consensus on what “open and transparent government” means and all the right things to do to attain it, but few seem willing to follow through once elected to government.

In opposition, one party will decry the actions of a government in this very area and thenadopt the very same practices if elected to government.

No great shock that the public is increasingly cynical when they hear the slogan, but fail to see any substance behind it. It is the height of political hypocrisy.

In 2011, Premier Christy Clark promised to run “the most open and transparent government in Canada,” implying that the Gordon Campbell administration, of which she had been a part, had failed to live up to its promise ten years earlier.

Then it was former Alberta premier Alison Redford's turn to promise that she would run “the most open and transparent government in Canada.”

Next up was Ontario Premier Kathleen Wynne who, in early 2013, promised that hers would be “the most open and transparent government in Canada.”

And finally, in October 2013, Nova Scotia Premier Stephen McNeil got in on the act anddeclared that he would run “the most open and transparent government in the country.”

Lofty words, but as they say: the proof of the pudding is in the eating. And slogans aren'tsubstitutes for substance.

Private practices...

2003

Ken Dobell, then-Deputy minister to then-Premier Gordon Campbell,, boasted that he deleted emails as

fast as he could and didn’t write down meeting notes. It became known as the “Dobell Doctrine.” He

promised to mend his ways, but didn’t. And it seems no one else ever did either.

Reported in June 2009

“The provincial government may have destroyed all cabinet e-mails between 2001 and 2005, opening

a huge gap in the official record despite a law that electronic files must be kept for at least seven years,

the Supreme Court of British Columbia has learned.”

– Mark Hume, The Globe and Mail

May 2005

The day after the provincial election, B.C. health ministry officials warned health authorities: “not to

put sensitive information in writing” to prevent the NDP and others from accessing that information via

legislation. Vancouver Island Health Authority (VIHA) media advisor Suzanne Germain passed the

edict on in an email to key staff:

“Use the phone a lot more than we have been. If you don’t want it on the front page of (The Times

Colonist), don’t put it in an E mail…”

March 2013

OIPC INVESTIGATION REPORT F13-01: Increase in no responsive records to general access to information requests: Government of British Columbia

“As noted earlier in the report, the Office of the Premier had no responsive records for 45% of its

closed files for general requests in the past fiscal year, with the next closest ministry having 30%.

Although the Office of the Premier has been above the government average in no responsive records in

each of the last three years, its percentage increased dramatically last year from 30% to 45%.”

August 2013

OIPC INVESTIGATION REPORT F13-04: Sharing of personal information as part of the draft multicultural strategic outreach plan: Government of British Columbia and the BC Liberal party

"I am particularly troubled by a comment from Minister John Yap in the Dyble Report regarding the

use of personal email. In response to a question from government investigators as to why (Brian)

Bonney, his former Communications Director, was routinely using personal email for his

correspondence, Minister Yap responded that it was to avoid freedom of information legislation.

I am concerned that this demonstrates an acceptance and familiarity within government of the practice

of evading freedom of information requests."

September 2014

OIPC SPECIAL REPORT: A step backwards: report card on government’s access to information responses April 1, 2013 – March 31, 2014

“When my predecessor issued the first timeliness report in 2009, just 71% of government’s responses

were on time – the most important factor in our three timeliness benchmarks. Government’s

performance improved to 90% in the following year, and in 2010/11 on-time performance increased

again to 93%. It is therefore disheartening for me to issue this report, which shows the government’s

on-time performance for 2013/14 has dropped to 74%.”

October 2015

OIPC INVESTIGATION REPORT F15-03: Access denied: record retention and disposal practices of the government of British Columbia

“I am deeply disappointed by the practices our investigation uncovered. I would have expected that

staff in ministers’ offices and in the Office of the Premier would have a better understanding of records

management and their obligation to file, retain and provide relevant records when an access request is

received.

In conducting this investigation, it has become clear that many employees falsely assume that emails

are impermanent and transitory, and therefore of little value. What this investigation makes clear is that

it is a record’s content and context that determines whether a record is transitory, rather than its form.”

“On the day (Information and Privacy Commissioner Elizabeth) Denham reported out, Transportation

Minister Todd Stone defended triple-deleting, telling reporters he does it regularly. What about

Denham’s view that there was “no legitimate reason” to permanently delete?

Well that was just “her interpretation of the act” said Stone, letting slip what the Liberals really

thought of that meddlesome watchdog.”

– Vaughn Palmer, Vancouver Sun, October 30, 2015

So what exactly is open government?

“In my view, freedom-of-information and privacy protection legislation should not be used as a shield and an impediment to people receiving information that otherwise should be made available. Disclosure and transparency should be the norm...”

– Then-Labour and Citizens' Services Minister Mike de JongHansard, November 23, 2005

“When I became Premier I made a commitment to change and open up government to British Columbians.

But what exactly is open government? To me, open government is about a different way of communicating. It's about using all the tools at our disposal to connect the public to government in new and meaningful ways.”

– Premier Christy ClarkJuly 18, 2011

Uploaded on July 18, 2011

“With a new, citizen-focused government website, release of open datasets and proactive posting of freedom of information requests and government expenses, British Columbia has become a national leader in open government.”

“I have always been motivated by a commitment to ensure our government is open and transparent. We

have taken many steps to enhance our laws, policies and procedures to meet this commitment.”

– Premier Christy Clark responding to David Loukidelis’ December 2015 recommendationson how to improve freedom of information policies, procedures and records management practices.

B.C. Premier's open government promise a complete, utter sham

“Once upon a time, Ms. Clark campaigned on the promise to have the most open, transparent government in the country. We now know that was a complete and utter sham, said for the benefit of a gullible public to get votes. The government’s record on this front is a disgrace.”

– Gary Mason, The Globe and Mail, October 23, 2015

What editorialists had to say about triple delete

Times Colonist editorial: End the culture of deception

“Those who cannot adhere to a vigorous standard of honesty and openness should immediately make a

career change...The B.C. government needs a tsunami of honesty and a whirlwind of accountability, not

trickles of grudging compliance to the law and information and privacy commissioner Elizabeth

Denham’s recommendations.”

– October 24, 2015

North Shore News editorial: Government by Post-It

“As Privacy Commissioner Elizabeth Denham’s report makes clear, the refusal to produce records of

important government business or even to create records isn’t accidental. It’s deliberate, entrenched and

starts at the top...Clark reportedly reacted to the news saying she doesn’t even know how to “triple

delete” emails.

But Clark has political staff only too happy to do it for her. Her own chief of staff, for instance, is cited

in Denham’s report as deleting virtually all of her emails daily. Another senior staffer in charge of

Freedom of Information requests in Clark’s office asks people about them in person, occasionally

scribbling on a sticky note, which he then gets rid of.”

– October 25, 2015

Peace Arch News editorial: Clark's explanation does not compute

“Triple-deleting is the electronic equivalent of shredding documents. That it is being done on such a

scale is disturbing. In the old, paper-trail days, such wilful destruction would have involved hundreds

of truckloads of files being hauled to the incinerator.”

“Clark’s glib explanations show more than a troubling lack of understanding for the need for public

trust and confidence. They show a contempt for the intelligence of the public itself.”

– October 29, 2015

Times Colonist editorial: Keeping records part of integrity

“How will history judge the current B.C. Liberal government? Well, future historians might find the

judging difficult, given that so much of history consists of preserved records. The Christy Clark

government has been notably deficient in that arena.

Such meticulous record-keeping would have been helpful in explaining the 2012 firings of several

Health Ministry employees. One of the biggest human-resources blunders in the history of the

Canadian public service has yet to be explained.

The most elementary of HR principles is creating a paper trail — or a digital trail these days — to

ensure fair and proper procedures are followed. Yet if such a trail was created in the Health Ministry

scandal, it hasn’t been found. When all the fingerprints have been wiped from the scene, it’s natural to

assume something shady is afoot.

But more important is a shift in attitude away from secrecy and toward openness.”

– October 29, 2015

Columnists...

Les Leyne: Denham report vindicates whistleblower

“There’s a particularly telling line in the commissioner’s report. She put everyone in Stone’s office

through the wringer while probing the allegations, including an administrative coordinator with two

years experience in B.C. and 13 years in Alberta.

“She testified that she did not know what triple-deleting was or how to do it until she came to B.C. She

recalled that the reason she was given for triple-deleting was because there was a lot of confidential and

sensitive information ‘and we need to make sure … it’s not out there.’ ”

– Times Colonist, October 24, 2015

Michael Smyth: How deep is the Clark government’s culture of destroying public records?

“Last week’s bombshell report on the Christy Clark’s government’s destruction of records related to the

Highway of Tears was shocking enough. But here’s the question that’s even more disturbing: Just how

deep does this government’s culture of record-shredding and cover-up really go?”

– The Province, October 26, 2015

Vaughn Palmer: Premier ignores repeated calls to archive information

“Christy Clark’s inaction makes a mockery of her promise of open and transparent government...Last

week marked the fourth occasion that information watchdog Elizabeth Denham faulted Premier Christy

Clark for failing to respect the spirit and provisions of the Freedom of Information Act in the conduct

of her office.”

– Vancouver Sun, October 30, 2015

And British Columbians weighed-in online...

“The more they get caught with hand in cookie jar the more walls they will build to hide the cookie jar.”

“It seems all politicians think that way about OUR ACTS.”

“Unless it suits them there will never be a real FOI.”

“It's morally reprehensible.”

“Colour me unsurprised!”

“Really shocked by this.... not!!!!!”

“BC Liberals writing history one shedder at a time.”

“I am utterly shocked! The BC Liberals hiding something? Never going to happen.”

“Transparency in government should be an attainable goal.”

Here was the mood of the province at the end of 2015

The best rated issues for the B.C. government: crime and public safety (35%, +1 since May), the economy and jobs (31%, -1), energy, pipelines and LNG (30%, +3), the environment (29%, +3) and education (28%, +7).

The rating is lowest for:

Government accountability (15%)

Housing, poverty and homelessness (14%, -1)

Results from the General Social Survey: Public confidence in Canadian institutions

National results:

Roughly six in ten Canadians expressed a great deal or some confidence in the school system (61%),

banks (59%), and the justice system and courts (57%). In comparison, less than half of Canadians had

confidence in the media (40%), Federal Parliament (38%), and major corporations (30%).

B.C. residents had the least faith of any province:

• 74 per cent had confidence in the police (76 per cent nationally)

• 58 per cent had confidence in the school system (61 per cent nationally)

• 51 per cent had confidence in the justice system (57 per cent nationally)

• 34 per cent had confidence in federal Parliament (38 per cent nationally)

• Only 30 per cent of Canadians said they had confidence in major corporations.

Table 4 Confidence in institutions, by province, 2013

Table 5 Confidence in institutions, by census metropolitan area, 2013

Table 6 Factors associated with confidence in institutions, logistic regressions, 2013

Promises made, but not kept

Recommendations

1. Ensure that the code of conduct for political staff introduced in 2014 (Appendix B) means more than the paper that the oath is printed on (Appendix C). Hold orientation sessions for political staff on their obligations under the Freedom of Information and Protection of Privacy Act, not only to their immediate superiors, but also to British Columbians.

2. Set out clear standards and expectations for 'duty to document,' enshrine it in the Act and ensure that the principle is spelled out explicitly in the codes of conduct for both public sector employees and political staff. Such standards should include the types of documents that are expected and required for most government functions, including the suspension or termination of public sector employees.

3. Restore the application of the Offences Act for the mangement of all government documents. B.C.'s Information and Privacy Commissioner would not have had to complete three investigations and one special report touching on the Premier's office in the last three years, if “naming and shaming” worked.

4. If it's owned by the people of British Columbia – either directly or indirectly through a wholly-owned or majority-controlled subsidiary or subsidiaries – it must be bound by and subject to the Freedom of Information and Protection of Privacy Act.

5. Bring the chicanery to a halt. Stop the use of personal email addresses for governmentbusiness, personal electronic devices (including Blackberries and other such devices), and the use of Post-it Notes as a means to circumvent the act, to name three examples.

6. Tighten rules around personal information collected, retained and used by political parties and/or candidates, and accessed by their consultants or volunteers, to ensure that the information is not potentially used at other election levels or commercial endeavoursfor which it was not expressly provided by an individual or government agency.

7. Draw a legislative distinction between advice of an opinion nature and the factual basis that may underlie that advice. Data or information that is generated to prepare advice should be seen under the legislation as distinct from recommendations.

8. Information that is publicly available in one ministry should not be redacted by another ministry or Crown corporation when it fulfills access to information requests.

9. Strengthen oversight of document destruction by independent officers and create a statutory period of no less than two-years for any document deemed transitory to protect against any potential abuse of that document classification.

Conclusion

Tim Duncan claims that when he hesitated to delete a dozen or so emails back in 2014 – and his superior stepped in to do so – he was told “This is Fight Club. And the first rule of Fight Club is we don’t talk about Fight Club.”

More troubling than that stale movie line was Liberal Research Director Jen Wizinsky’s admonishment to Tim Duncan, “you do whatever it takes to win.” That speaks to a culture.

And it's why Information and Privacy Commissioner Elizabeth Denham underlined, in 2013, the Need for a Culture Change:

“This investigation has revealed a combination of issues that demonstrate that government has not sufficiently integrated its responsibilities regarding privacy and access into the workplace culture in minister’s offices and other government departments that have roles that are closely tied to the governing party.”

Two final thoughts:

If you were not an MLA – unencumbered by party discipline – what would you want your MLA to recommend at this committee?

What would you – as an engaged-member of your local community – believe you and the general public have a right to know when it comes to the public's business?

And then remember the words of former premier Gordon Campbell, who in 1998 – as then opposition leader – said:

“Secrecy feeds distrust and dishonesty. Openness builds trust and integrity."

Appendices

Appendix A: Best practices for public consultations

Despite several high-profile privacy breaches and controversies over the destruction of government

documents, MLAs studying changes to B.C.'s Freedom of Information legislation have had to cancel

public meetings due to lack of interest in the topic.

“Based on some of the conversation we’ve seen in question period and media stories written it’s

surprising to me we’ve had such a poor uptake by the general public and by the stakeholder groups

that have areas of concern on this. It’s embarrassing when we get the turnout we have,” said Liberal

MLA Don McRae.

Announcing the hearings on July 29 might have had a bit to do with that poor uptake.

The Friday before the Thanksgiving Day long weekend isn't the best of days to hold public meetings.

After all, Premier Clark did mention that “Thanksgiving is a time to gather with friends and family...”

Holding hearings in the midst of the federal election campaign was unavoidable, but also not the best

time to engage the public either.

A bit more outreach would help. Yes, there's material on the legislature website, but other provinces

send emails out, followed up by letters, to groups they believe will have an interest in a particular

consultation.

In 2013, the Office of B.C.'s Auditor General released guidelines on best practices for public

consultations.

They include: making every reasonable effort to include the stakeholder groups and the public affected

by the pending decision and providing appropriate time and resources to ensure that those involved can

participate in a meaningful way. You can read the document here:

A few social media stats to consider as well in gauging the public's interest in these issues:

1. Gary Mason's column in the Globe and Mail: B.C. Premier's open government promise a complete,

utter sham: 6,000 Facebook recommends off the Globe and Mail's site. Mason's column on the

Facebook page of IntegrityBC reached 13,909 people.

2. Vaughn Palmer's column in the Vancouver Sun: B.C. Liberals offer nothing more than empty words

in response to coverup allegations reached 11,506 people on IntegrityBC's Facebook page.

3. And when Information and Privacy Commissioner Elizabeth Denham released her report

IntegrityBC's BREAKING NEWS post reached 11,888 people.

Do not misjudge the public's interest in these issues by their response to an announcement made in the

middle of summer for hearings to start more than two-months later on the first day of a long weekend.

Appendix B

STANDARDS OF CONDUCT FOR POLITICAL STAFF REGULATION (abridged)The complete standards of conduct for political staff is available at: http://www.bclaws.ca/civix/document/id/complete/statreg/67_2014

Political staff will exhibit the highest standards of conduct. Their conduct must instil confidence and trust and not bring the Province of British Columbia into disrepute.

The requirement to comply with these standards of conduct is a condition of employment. Political staff who failto comply with these standards may be subject to disciplinary action up to and including dismissal.

The Standards of Conduct for Political Staff closely resemble the Standards of Conduct applicable to employees of the BC Public Service.

However, the Standards of Conduct for Political Staff recognize the unique, partisan role performed by political staff and provide guidance on how political staff may exercise their partisan duties while also respecting the non-partisan role of employees in the BC Public Service.

Role of Political StaffPolitical staff are generally employed to help Ministers on matters where the non-political and political work of Government overlap and where it would be inappropriate for permanent public servants to become involved.

LoyaltyPolitical staff have a duty of loyalty to the government as their employer. They must act honestly and in good faith and place the interests of the employer ahead of their own private interests. The duty committed to in the Political Staff Oath requires political staff to serve the government of the day to the best of their ability.

Service to the PublicPolitical staff must provide service to the public in a manner that is courteous, professional, equitable, efficient, and effective. Staff must be sensitive and responsive to the changing needs, expectations, and rights of a diverse public in the proper performance of their duties.

Workplace BehaviourPolitical staff are to treat each other with respect and dignity and must not engage in discriminatory conduct prohibited by the Human Rights Code. The prohibited grounds are race, colour, ancestry, place of origin, religion, family status, marital status, physical disability, mental disability, sex, sexual orientation, age, political belief or conviction of a criminal or summary offence unrelated to the individual’s employment.

Further, the conduct of political staff in the workplace must meet acceptable social standards and must contributeto a positive work environment. Bullying or any other inappropriate conduct compromising the integrity of the Province of BC will not be tolerated.

Political staff may ask ministry employees for information, transmit the Minister’s instructions, or be informed of decisions in order to address communications and strategic issues. However, they do not have a direct role in

ministry operations and have no legal basis for exercising the delegated authority of Ministers. Nor may politicalstaff give direction to ministry employees on the discharge of their responsibilities.

Examples of inappropriate conduct include, but are not limited to, the following:Ask a ministry employee to do anything inconsistent with their obligations under the Standards of Conduct;Suppress or supplant advice prepared for the Minister by ministry employees (although they may comment on such advice).

Allegations of WrongdoingPolitical staff have a duty to report any situation relevant to their employment that they believe contravenes the law, misuses public funds or assets, or represents a danger to public health and safety or a significant danger to the environment.

Staff can expect such matters to be treated in confidence, unless disclosure of information is authorized or required by law (for example, the Freedom of Information and Protection of Privacy Act).

Staff will not be subject to discipline or reprisal for bringing forward to a Chief of Staff, in good faith, allegations of wrongdoing in accordance with this policy statement.

Political staff must report their allegations or concerns in writing to their Chief of Staff or the Chief of Staff to the Premier, who will acknowledge receipt of the submission and have the matter reviewed and responded to in writing within 30 days of receiving the staff member’s submission.

Where an allegation involves a Chief of Staff, the employee must forward the allegation to the Chief of Staff to the Premier. Where an allegation involves the Chief of Staff to the Premier, the allegation must be forwarded to the Deputy Minister to the Premier.

In addition to these reporting requirements, it is expected political staff will also report to the Comptroller General any irregularities related to the expenditure of public funds as outlined in Section 33.2 of the Financial Administration Act.

Where a political staff member believes that the matter requires a resolution and it has not been reasonably resolved by their employer, they may then refer the allegation to the appropriate authority.

If the staff member decides to pursue the matter further then:• Allegations of criminal activity are to be referred to the police;• Allegations of a misuse of public funds are to be referred to the Auditor General;• Allegations of a danger to public health must be brought to the attention of health authorities; and• Allegations of a significant danger to the environment must be brought to the attention of the Deputy Minister, Ministry of Environment.

Appendix C

B.C. Reg. 66/2014210/2014

Deposited April 17, 2014

Public Service Act

Definition

1 In this regulation, “political staff member” means a person described in the Schedule to the Standards of Conduct for Political Staff Regulation.

Form of oath2 The prescribed form of oath for a political staff member for the purposes of section 21 of the Public Service Act is as follows:

As an appointee under section 15 (1) (a) of the Public Service Act,

I, ………………………………… , [appointee name] do solemnly swear/affirm [circle one] that

I will

1 loyally serve the people of British Columbia through their democratically elected government,

2 honour and faithfully abide by the Standards of Conduct for Political Staff, and

3 to the best of my ability,

(a) act with integrity, putting the interests of the public and the public service above my own personal interest and avoiding all conflicts of interest, whether real or perceived,

(b) safeguard confidential information, not divulging it unless I am either authorized to do so or required to do soby law,

(c) conduct myself honestly and ethically, in a manner that maintains and enhances the public’s trust and confidence in the Province of British Columbia and does not bring it into disrepute.

POLITICAL STAFF OATHREGULATION

NOTE: CHECK THE CUMULATIVE REGULATION

BULLETIN 2014 AND 2015

FOR ANY NON-CONSOLIDATED AMENDMENTS

TO THIS REGULATION THAT MAY BE IN EFFECT.

Sworn/Affirmed [circle one] by me, at …………………………………………………, this …………….. day of……………………………….., 20…… .…………………………………………………………..Person administering Oath or Affirmation…………………………………………………………..Person giving Oath or Affirmation[Provisions relevant to the enactment of this regulation: Public Service Act, R.S.B.C. 1996, c. 385, section 25]