Rob Botterell helped build one of Canada's best transparency laws, and watched it fall apart.
B.C. is fighting a losing battle against a closed government for freedom of information.
Back in 1992, Rob Botterell and his team thought they’d won a great victory. B.C.’s Freedom of Information and Protection of Privacy Act was passed in the legislature and hailed by many experts as Canada’s best transparency law. Botterell had been made the director of B.C.’s Information and Privacy Branch under the Socreds and was asked to lead the creation of the act under the subsequent NDP government. “We went through a lot of trouble to make sure it was the most open,” he says, “to create a culture of openness instead of a culture of secrecy.”
So how is it that today the B.C. government is regularly held up as one of Canada’s most secretive? For years it has been singled out by groups as diverse as the Canadian Taxpayers Federation and the BC Civil Liberties Association for its reluctance to share information. A national access-to-information audit by the Canadian Newspaper Association conducted this year ranked B.C. last among the provinces, tied with Ontario. For those like Botterell who helped build the law, how we got here is a sad story.
The act demands that information produced by government that is in the public interest be automatically made public, without anyone even having to ask for it, Botterell explains in a recent phone interview. Official access-to-information requests for specific information were meant to be “a last resort,” he adds. The intent was that the government could only keep a few narrowly defined secrets, notably cabinet deliberations and policy advice. But since the law was passed, court decisions have significantly narrowed what is considered public-interest information and expanded the definitions of cabinet discussion and advice far beyond what was originally intended, Botterell says. Access-to-information requests are now the standard for opposition parties, journalists, businesses and public-interest groups trying to get information from the government, and requests for politically sensitive information are often subject to delays, high fees or omissions.
“We’d all hoped that the provisions we had in the legislation would be enough to have the culture of openness take hold,” Botterell says. “But I think we all underestimated the institutional and systemic factors that really resist disclosure.”
The kinds of information in question can have a significant impact on B.C. businesses. For example, environmentalists have long feared that parasites are thriving in open-water salmon farms and killing B.C.’s wild fish. If true, this would demand a serious re-evaluation of B.C.’s biggest food export. The David Suzuki Foundation has been trying for four years to get government data on the parasites. This past spring, B.C.’s information and privacy commissioner struck down the government’s argument that the data was covered by privacy law and ordered it released, emphasizing that the purpose of the legislation is not to shield companies from public scrutiny.
Gordon Gibson – former Liberal MLA, senior fellow with the Fraser Institute and political columnist – says governments of all stripes try to sell the public on certain policies. And if politicians have chosen one out of three options, he explains, it’s not in their interest to have people asking questions about the other two. But the lack of dialogue damages the fundamentals of both a democratic society and a free-market economy. Both depend on access to good information, he says, and without it, poor decisions are made. “The cult of secrecy is almost entirely for the benefit of those in power, and they cripple democracy thereby,” he says.
Darrell Evans, executive director of the non-profit BC Freedom of Information and Privacy Association, says there’s been a trend in government since the 1980s to adopt corporate-style communications strategies, with a central authority controlling what information gets out. This has become a strong force in Victoria’s political culture, he says, and even more so in Ottawa. The irony, Evans says, is that both Gordon Campbell and Stephen Harper used to be strong advocates of open government before gaining their current jobs. “And maybe they even believed their own rhetoric,” he allows. “But once they’re in government, the kind of management style asserted itself.”
How to fix B.C.’s flawed law is no mystery, says Botterell; the same recommendations have been published in information commissioners’ reports since 2004. But so far no government has been willing to increase scrutiny on itself. In the meantime, the public is becoming increasingly suspicious of government, as illustrated by the popular outcry against the HST, a reaction that Botterell says gives him some hope for the future. Eventually, a political party will tap into that public resentment and realize it is better off making policy decisions publicly rather than trying to control the flow of information. “I thought that would happen in the 1990s,” he says, “but I think it’s just a matter of time.”