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HomeMiscellanyNDP fails first major FOI test on Right to Know Week’s first day

NDP fails first major FOI test on Right to Know Week’s first day


Bob Mackin

The fledgling B.C. NDP government under Premier John Horgan has failed its first major Freedom of Information test. 

On day one of the annual international Right to Know Week, to boot. 

The party that promised to be better than the BC Liberals sent theBreaker a $135 invoice on Sept. 25 after theBreaker asked to see the cost-benefit analysis behind the Sept. 6-announced cancellation of the Massey Tunnel Replacement Project.

The $135 invoice came exactly one month after Horgan and Transportation Minister Claire Trevena proudly announced the NDP would stop charging tolls for vehicle drivers on the Port Mann and Golden Ears bridges. Like the BC Liberals before them, the NDP continues to stick-it to members of the public who only want to see public records that taxpayers have already paid to create.

Trevena said Sept. 6 that an independent review would help decide whether to build the proposed 10-lane bridge, a smaller bridge or a new tunnel. The two bid teams still standing in the BC Liberal-instituted procurement for the $3.5 billion, 10-lane bridge will receive up to $2 million in consolation money. Trevena wouldn’t name them, but theBreaker found out they were led by Montreal’s SNC-Lavalin and Madrid’s Grupo ACS (Kiewit’s team dropped out).

On the fee invoice, the NDP government claimed it needed to spend six hours to locate and retrieve the documents about the cancellation, but would charge $30 an hour for three hours, because the law says the first three hours are free. 

To prepare the records, it wanted to ding theBreaker another $45. 

Grand total $135. Fine print says it could cost more. theBreaker will not pay.

How could it take six hours to find a report created sometime since Horgan’s July 18 swearing-in? Did someone write it on the back of a napkin and let it fall out of his or her jeans at the beach or a lacrosse game during the summer?  

But seriously. The work to help Horgan and Trevena make the Massey decision was already performed by computer-literate people paid with your tax dollars and their report cannot be hard for Trevena, her aides and deputy transportation minister Grant Main to find. Whether you wanted the bridge or not, you have a right to see the results of evidence-based decision-making. 

The situation is eerily similar to one that unfolded four years ago, after Christy Clark announced the bridge project at the Union of B.C. Municipalities convention in Vancouver.

I asked for the Massey Tunnel Replacement Project business case, including cost estimates, and any reports recommending or authorizing preliminary communications, environmental, engineering and site preparation.

The government responded Nov. 5, 2013 with an invoice for $126 to see just 60 pages. The BC Liberal finance ministry, under Mike de Jong, said it would take two hours to “produce” the records and another two hours to prepare and handle the records for disclosure. That’s $120. The other $6? That was supposedly to scan documents that were already printed from a computer (FOI redactions are done on-screen, not by hand anymore).

De Jong’s staff refused to waive the fee, until the Office of the Information and Privacy Commissioner intervened six months later. The documents were heavily censored and an adjudicator in early 2017 sided with the government and denied access, because they contained advice to cabinet. In our archaic parliamentary system that some call a democracy, cabinet automatically defaults to secrecy, leaving the curious to wait a statutory 15 years to access its minutes and reports. 

Information on decisions made by the people elected by the people should not be held hostage. For the 2005 International Right to Know Day, Open Society Justice Initiative released its 10 principles, which included: “Making requests should be simple, speedy, and free.”

“The cost should not be greater than the reproduction of documents,” it said.

Last Feb. 16, the opposition NDP tabled a suite of 13 democratic reform bills, one of which was the Public Records Accountability Act to improve the FOI law. The BC Liberals, of course, didn’t vote for it. The NDP ran on a platform of improving access to information and Horgan included that in his post-swearing-in marching orders to Citizens’ Services minister Jinny Sims. But the promise was omitted from the Sept. 11 throne speech. 

Trevena (left) and Horgan tout toll free B.C., but not free information in B.C. (BC Gov)

When Horgan attended Game 6 of the Mann Cup in New Westminster on Sept. 15, he told me during second intermission that an FOI reform bill wouldn’t happen before the new year. He said bills to reform campaign finance and lobbying would take considerable time this fall. 

At the Sept. 22 Info Summit, hosted by the B.C. Freedom of Information and Privacy Association, lawyer Rob Botterell raised the alarm about the lack of rapid reform. “The silence is deafening,” said Botterell, who helped draft the original FOI law in 1992. Botterell urged everyone who is concerned to contact their MLA to pressure Horgan to live up to his transparency promises. 

Trevena — a former BBC and CBC reporter! — had been an advocate of transparency while she sat in the opposition benches. In her MLA report on Oct. 30, 2015, she highlighted her work in Question Period to hold the BC Liberals to account. Information and Privacy Commissioner Elizabeth Denham, acting on whistleblower Tim Duncan’s complaint, exposed the triple delete scandal centred in then-Transport Minister Todd Stone’s office. 

Trevena told her constituents this: “Access to information is fundamental to a healthy democracy, and is vital for journalists, researchers, academics and others to do their work. However the BC Liberals prefer to erase the record rather than open up their actions to scrutiny.”

But, fast forward to Sept. 25, 2017, on day one of Right to Know Week. There is proof that the NDP has more in common with the BC Liberals than either want to admit. 

They both like to use predatory fees to prevent the same journalist from exercising his right to know about the same major infrastructure project. 

  • The Right to Know belongs to everybody in British Columbia and every other province and territory. Filing FOI requests is for everyone, not just journalists. You’re invited to the B.C. Freedom of Information and Privacy Association’s free FOI 101 course on Sept. 29 in downtown Vancouver. Sign-up now. Click here for more information