Policy 116: Coca-Cola and the Freedom of UBC’s Information

Back in January, UBC Insiders broke a story about email voting by the Board of Governors. At the time, we intended to actually go into the board policies that were involved. Life and AMS elections got in the way.

Hubert Lai, University Counsel (ie. UBC’s lawyer), gave an interview about Policy 116: Commercial Agreements Initiated by External Affairs and the Freedom of Information and Protection of Privacy Act, where he explained what the policy was and why it was repealed. Most of all, he repeatedly played down the importance of the repealing of this policy, saying it was obsolete and should have been taken off the books years ago.

The policy was enacted when freedom of information laws were first being applied to universities. It covered how the university dealt with third-party companies that were not subject to these freedom of information laws who, by doing business with UBC, might be compelled to release information they might otherwise consider confidential. Policy 116 laid out the fact that:

1) The third party was allowed to hand-pick which information UBC should black out from the document in the event of an FOI request; and

2) If the appropriateness of blacking out those sections was challenged at the level of the privacy commissioner or via judicial review, the third party would have to pay all the costs associated with those challenges.

According to Hubert Lai (who, as a side note, recommends the Nitobe Garden as a good place to kiss on campus), times have changed…

…the kind of language that we would put in a contract and the kind of expectations the parties could have, back in 1995, they were fully supported by the [privacy] commissioner’s office. Since that time, the commissioner’s office has had that decision judicially reviewed and it’s been overturned and so the approach is very different on that as well. So the information that was contained in Policy 116 was no longer correct once that decision had been made.

The agreements this policy was meant to address weren’t run of the mill contracts. This was at a time when UBC had an affinity for exclusivity contracts, of which there were three majors. One was for telecommunications with Telus. Another was for travel with Canadian Airlines (it didn’t last long). The third was the infamous deal with the AMS and Coca-Cola.

What information was contained in the Coca-Cola deal that was considered confidential? Well, everything. Only 3 of 179 pages were released as a result of the original FOI request by Ubyssey reporter Stanley Tromp, and the university supported the ongoing censorship until a years-long judicial review forced the release of the details. In a way, Policy 116 was UBC’s way of enacting an interpretation of FOI laws in a way that benefitted them, until it was overturned in the courts; a loose evaluation of the situation might even be to say that Policy 116 needed to be retired because it was outside the law.

As a general strategy, trying to establish an interpretation of FOI laws that swings in their favour is something UBC was still trying to do last year when they appealed the Privacy Commissioner’s ruling opening up Properties Trust. In that case, the Petition of Appeal UBC filed did not even bother arguing the merits of the case, trying instead to get it thrown out on procedural grounds. That case is currently back with the Privacy Commissioner, on hold indefinitely.

Getting back to the topic at hand, for a narrower view of the type of info Coca-Cola wanted kept confidential, Hubert Lai explains:

Coke at the time said to both the AMS and the university – because it was a three-way agreement you have to remember between UBC, the AMS and Coke. They said “look, we’re prepared to share pricing information with you. There’s two sets of pricing information we’re prepared to share with you. One is the information that we can share with you if we know it’s going to remain confidential because if it was disclosed it would put us at a competitive disadvantage. If you can’t do that, and we recognize you may have some problems, then we can give you a different set of pricing information which will be higher prices, but if that’s the cost of transparency then that’s a decision the AMS and the university can make.” Thus ensued quite a discussion and both the AMS and the university ultimately decided that it made sense to go with the lower pricing information.

No one reading this blog should idealistic or naive enough to believe UBC wouldn’t put a price on transparency (and if you are, re-read the quote above again). However, to hear that the value UBC and the AMS placed on transparency was lower than the value of getting a marginally better price on soft drinks? Even for jaded cynics that’s detestable.

Although UBC will say they’ve gotten out of the business of exclusivity contracts, their relationship with Coca-Cola never ended. A new “non-exclusive product supplier agreement” between Coca-Cola, UBC Athetics and UBC Food Services was ratified by BoG at their April 2010 meeting, worth $6.665M over 10 years. (How nice of Coca-Cola to also give UBC a meaningless sustainability award shortly before it was approved.)

Now, with proposed changes to BC’s liquor laws set to “permit financial relationships between liquor manufacturers and licensees” a similar agreement with the likes of Molson might not be far off. (Fun Fact: there’s a plaque just inside the SRC identifying Labatt as a major donor to the project.)

While the university may not technically consider these to be exclusivity deals, they’re close. At the very least UBC has not been shy about doing deals designed to limit competition on campus. The contracts it has with businesses in the aptly-named Strangway building on U-Blvd: Royal Bank, Shopper’s and Mahony’s have clauses preventing any other banks, pharmacies, or liquor-primary licenced bars, respectively, from operating anywhere in the U-Blvd neighbourhood. The last one has caused some headaches for the AMS in severely limiting what can be done with regard to The Pit and The Gallery in the NEW SUB. Although it’s clear UBC is being a total sellout to make a quick buck with these agreements, progression in privacy laws means that this time, at least we know about it.