Exclusive: Father of B.C.’s freedom of information law says NDP can’t be proud of Bill 22

Bob Mackin

The Attorney General behind B.C.’s 1993 freedom of information law said the goal under NDP Premier Mike Harcourt was “to create the best legislation in the western world.”

Colin Gabelmann in 2015 (@JeanneCBC/Twitter)

“Whether we met that standard or not, I don’t know, but it was certainly the best legislation in Canada at that time, for sure,” said Colin Gabelmann in an exclusive interview with theBreaker.news. “Now they seem to be striving in the middle of the pack, to paraphrase the minister responsible now. I’m disappointed about that, that’s not what the NDP can be proud of.”

Gabelmann worries that today’s NDP under Premier John Horgan wants to ram through a bill harmful to citizens’ right to know. His biggest grievance is the plan to charge an application fee. Citizens’ Services Minister Lisa Beare has proposed a $25 charge for each FOI request.

“I argued all the time back in the ’90s, that if the governments of the day would just put everything that’s permissible online — and the internet was just developing in those days, it wasn’t as useful a tool as it has become — then people wouldn’t have to make these applications for information,” he said.

“There would still be some necessity to make application and some borderline and some grey areas, but, if the information belongs to the public, in principle, it should be the public’s information at no cost.”

There is no application fee today and applicants are entitled to three hours of free service. The law was originally written to allow fees be charged only for complex, time-consuming requests. The Information and Privacy Commissioner has the power to overturn unjustified fees. 

Bad actors? Premier John Horgan and Lisa Beare on the Riverdale set in 2019 (BC Gov/Flickr)

Gabelmann said the NDP government should refer Bill 22 to the all-party, statutory review committee that considers amendments every five years. The current version of that committee has yet to meet. However, the NDP used its majority Oct. 26 to defeat the BC Liberal motion to refer Bill 22 to that committee by a 50-29 tally.

One of those who voted on the government side was Oak Bay MLA Murray Rankin, who advised Gabelmann on development of the FOI law almost 30 years ago. In 2017, while he was the Victoria NDP MP, Rankin called FOI application fees a “tollgate” on the public’s right to know during a House of Commons access to information committee hearing. 

“[Rankin was] an invaluable asset to developing the ’93 legislation,” Gabelmann said. Fast forward to 2021, Rankin is between a rock and a hard place in a whipped caucus and subject to the traditions of cabinet confidentiality and solidarity. That means Rankin cannot publicly dissent without losing his post as the Indigenous Relations minister.

“I’m disappointed he’s not in a position to articulate what I know to be his values,” Gabelmann said.

Gabelmann said he is also concerned that Bill 22 proposes removal of the premier’s office from the list of public bodies. The NDP claims it doesn’t intend to ban FOI requests about the premier, but Gabelmann said “I’m not 100% sure of that.”

Only two new public bodies are proposed for inclusion in the amended law: the B.C. Association of Chiefs of Police and B.C. Association of Municipal Chiefs of Police.

Another is conspicuously absent from Bill 22: the Legislative Assembly itself.

Mike Farnworth announces $2,000 fines on April 19 (BC Gov)

In February 2019, after Speaker Darryl Plecas’s report on corruption by the Clerk and Sergeant-at-Arms, the Information and Privacy Commissioner, Ombudsperson and Merit Commissioner publicly called for the NDP government to protect whistleblowers, mandate hiring and firing by just cause and designate the Legislature as a public body under the FOI law.

NDP House Leader Mike Farnworth promised it would happen: “Let me be really clear: Those three recommendations are going to be implemented,” Farnworth said in 2019.

theBreaker.news wants to interview Farnworth about the omission of the Legislature from Bill 22, but he has not responded.

Gabelmann agreed it should be added, but not before the all-party committee does its work.

CLICK HERE AND LISTEN TO COLIN GABELMANN ON THEBREAKER.NEWS PODCAST

When the NDP used its majority to defeat the referral motion on Oct. 26, it also voted to pass Bill 22 through second reading. Beare rose and briefly accused the opposition BC Liberals and Greens of fearmongering.

“I look forward to committee stage, which is where we’re going to have this debate — clause by clause, line by line — through this legislation, and I’m going to get the chance to outline what this means for British Columbians and how important it is,” Beare said in the Legislature.

No other NDP MLA stood to justify their support of Bill 22 on Oct. 26, which shocked a former BC Liberal Finance Minister and Attorney General. Abbotsford West MLA Mike de Jong said the NDP government had been “consumed by its own arrogance.”

“A government armed with a majority that now governs on this basis: we’ll do what we want, when we want, because we can,” said de Jong. He is an expert at spotting those warning signs, after spending 16 years in a government that was fond of using its majority whenever convenient. 

Also on Oct. 26, a coalition led by the B.C. Freedom of Information and Privacy Association urged Horgan and Beare to withdraw Bill 22, let the all-party committee do its work, and commit to introduce amendments to the law that reflect the recommendations of current and past committees.

In an open letter, BC FIPA called Bill 22 “regressive” and said the law would make it harder for everyone to get facts, rather than spin.

“This legislation would extend the ability of current and future governments to keep people in the dark about vital matters of public interest,” the letter said.

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Bob Mackin The Attorney General behind B.C.’s 1993