In 2009, the BC Office of the Information and Privacy Commissioner (OIPC) ruled that three of UBC’s private subsidiaries (including UBC Properties Trust) must comply with freedom of information (FOI) requests. UBC appealed the decision and no FOI requests were fulfilled by any of these entities. In fact, nothing happened for two years. Until now.
In early May, a similar court case involving document requests made to Simon Fraser University (SFU) wrapped up. This case had the potential to re-write privacy laws as they pertain to universities and other public bodies. The outcome of this case would have set a precedent through which UBC’s appeal would have been viewed. No precedent was set; the SFU case ended with no decision rendered.
As a result, the UBC case has once again been pushed to the forefront. As with the SFU case, this has the potential to re-write privacy laws for BC Universities. The question to be answered is: “Should private companies which are wholly-owned by BC universities be subject to the same FOI requirements as their parent universities?” Don’t expect to get a definitive answer soon, though. Getting to this point has taken years already.
David Noble, gadfly extraordinaire
In 2004, a York University professor named David Noble placed a request under the Freedom of Information and Protection of Privacy Act (FIPPA) for documents from SFU. The request was for information held by their University-Industry Liaison Office (UILO) regarding two of SFU’s spin-off companies: Credo Interactive and Virtual Learning Environments.
At first, SFU started producing some of the requested documents, while some others were held back. SFU took the position that they had possession of all the records and could provide them, but was required to first consult with Credo and Solstice Management Group, another shareholder in Credo, about whether to release them. Further discussions with Credo and Solstice occurred, and more documents were released.
Despite having indicated that all of the requested records were in its possession, as well as already having produced some of the requested records, SFU then did an abrupt about-face, saying that it did not have any of the remaining documents. Instead, a holding company named SF Univentures (SFUV) was supposedly the entity which possessed the records. Public bodies such as SFU are covered under FIPPA while private bodies, as SFUV was purported to be, are covered under a separate law, the Personal Information Protection Act (PIPA). SFU asserted that SFUV, as a private corporation, was not required to fulfill requests made under FIPPA. It was made clear that David Noble would not be receiving any more of the requested information.
Professor Noble was a well-known gadfly aimed towards Canadian universities. He fought against corporate influence at universities, which he felt was steadily eroding academic freedom, and increasing use of technology, which he felt was being used to control, rather than empower, workers. He also had a decidedly unpleasant history with SFU. In 2001, Noble was nominated for a prestigious faculty position at SFU, the J.S. Woodsworth chair in the department of humanities. Despite unanimous faculty support, his appointment was blocked by then-SFU-president Michael Stevenson, telling another senior administrator to “avoid this appointment like the plague.” Noble finished his career at York University. While it may have been partly vindictive of him to go after SFU in particular for documents, given their history, the records he sought were not unrelated to his areas of interest.
Once SFU stopped producing documents, Noble requested a review of their decision by the BC Office of the Information and Privacy Commissioner (OIPC) which has adjudicators who can rule on issues arising as a result of FIPPA. The OIPC adjudicator invited other groups to participate as intervenors, a status awarded to parties with a strong indirect interest in the outcome. UBC was one of those invitees and made a joint submission with UVic.
During the inquiry SFU asserted once again it did not have control of the documents, insisting that SFUV had never provided them to SFU. As a private company, SFUV is not subject requests for information under FIPPA. UBC and UVic’s submission argued that the records could not be under the control of both SFU and SFUV and since the records were under SFUV’s control, could not be under SFU’s control.
However, the situation was not as black and white as the universities had portrayed. SFUV exists only on paper. If it weren’t for SFU, SFUV would have no employees, location or any tangible existence at all. As summarized by the adjudicator,
SFU is the sole shareholder of SFUV. The President of SFUV is the Vice President of Research at SFU and the director of the UILO is an SFUV director. All of SFUV’s directors are SFU employees. All of SFUV’s activities and its day to day management are undertaken by staff of the UILO. SFUV’s office is located at SFU within office space that the UILO occupies.
The main question at issue in this case could be described as “When a private company such as SFUV is merely acting as a shell company for a public body, should that shell company be considered to be a part of the parent public body and therefore also be subject to FIPPA?” It was treading within a grey area of the law and no clear answer to this question existed.
Due to SFU’s all-encompassing control over SFUV, and the fact that SFU employees were the ones creating and handing all of SFUV’s documents, the adjudicator ultimately concluded that SFU did in fact have control of the documents and that SFUV’s status as a private entity could be ignored. SFU was ordered to fulfill Noble’s information request. Unsurprisingly, SFU appealed this decision to the BC Supreme Court.
Following in Noble’s footsteps
While the dispute between Noble and SFU was ongoing at the OIPC level, a strikingly similar situation was occurring at UBC. A freelance journalist by the name of Stanley Tromp was requesting documents from UBC’s subsidiary companies. UBC’s subsidiaries were set up in a similar manner to SFUV: technically private corporations but wholly-owned and wholly-controlled by UBC with many UBC employees on the payroll. Tromp is a former Ubyssey reporter and FOI wonk who famously forced the release of the 12-year exclusivity agreement between Coca-Cola, UBC and the AMS. He’s not the only one interested in documents from these UBC subsidiaries. The AMS, the Ubyssey and some of the CUPE unions on campus have also made FOI requests of these companies but no requests have ever been fulfilled. In particular, many groups on campus are interested in learning more about the operation of UBC Properties Trust (UBC PT). On campus, UBC PT has a near-monopoly over land development and is the landlord for most of the commercial space. Given the perpetual controversy over the way UBC develops its land, keeping their property development arm completely shielded from public scrutiny inevitably raises eyebrows.
Like Noble, Tromp went to the OIPC for a review of UBC’s decision to withhold documents. In April 2009, the OIPC ordered that, similar to the situation at SFU, because UBC held such complete control over the three subsidiary companies, UBC controlled the documents and must produce them. Like SFU before it, UBC appealed to the BC Supreme Court.
In August of 2009, the case between SFU and David Noble finally reached the BC Supreme Court. Once again, UBC obtained intervenor status in the case. In a rather dense ruling a judge sided with SFU, overturning the OIPC’s earlier decision.
First the judge had to decide whether to use a legal standard of “reasonableness” or of “correctness”. Under reasonableness, the judge would have deferred to the OIPC’s judgement as long as they had followed the proper procedure and their conclusion was, in his opinion, reasonable. Under the correctness standard, even if the OIPC’s previous ruling had been reasonable, the judge would still examine the facts in the case to determine whether or not their ruling was, in his interpretation, correct according to the law. The judge opted for the latter.
The judge’s ruling was based upon once again pondering the question “Is SFUV independent of SFU?” Based on precedent, for SFUV and SFU to be considered one and the same, SFUV must have “no independent functioning of its own”. However, the judge made no effort to actually perform the cited test on SFUV to determine its degree of independence. Instead, the simple fact that SFUV has been incorporated as a business was used assert its independence from SFU. The justification was merely tautological: SFUV is a private corporation because SFUV is a private corporation. The judge also sided with UBC in their argument that SFUV’s documents could not be subject to both FIPPA and PIPA simultaneously.
As a result of the ruling in favour of SFU, the OIPC offered to hold a second inquiry into Tromp’s request and UBC withdrew its BC Supreme Court appeal. The precedent set by the SFU decision meant that a second Tromp inquiry would have almost certainly gone in UBC’s favour. However, David Noble, along with the Canadian Association of University Teachers (CAUT), subsequently appealed the SFU case to the BC Court of Appeals, BC’s highest court. The OIPC put the second Tromp inquiry on hold pending the outcome of the SFU case.
Out like a lamb
Slowly but surely, the Noble case was moving towards the BC Court of Appeals. As with the previous cases, UBC obtained intervenor status. Finally, hearing dates were scheduled for January 19 & 20, 2011.
Unexpectedly on December 27, 2010, David Noble passed away from complications related to pneumonia.
Nevertheless, the January court date went ahead as planned. However, rather than debating the case, the lawyers had a morning-long discussion about how to proceed in the wake of Noble’s death. Counsel for SFU argued the case was moot since there was no resolution to be had – even if the documents were produced there was no one to receive them. Legal counsel for Noble and CAUT sought to have another individual inserted into the case in his place. They were given 3 months to come up with a suitable candidate. They found two. The first was Sarah Dopp, Noble’s widow. The second was Arthur Schafer, a philosophy professor at the University of Manitoba.
The 3-judge panel ruled that neither Dopp nor Schafer could be inserted into the case in Noble’s place. The written judgment was issued August 3, 2011. Since the only party in the case seeking records was deceased the case was declared moot. After 7 years, Noble’s request fizzled away quietly, without resolution. The case died with him.
The OIPC inquires again
On May 10, 2011, the OIPC reopened the second inquiry into Tromp’s document requests. The submission period runs until June 7, after which an OIPC adjudicator will consider all of the submissions and issue a ruling. With the leading precedent being the BC Supreme Court ruling in favour of SFU, it appears likely that the original ruling will be reversed and UBC will be allowed to keep the corporate veil intact. Holding a second inquiry expecting to reach the same conclusion as before would be nonsensical.
No matter who ends up winning this inquiry an appeal to the BC Supreme Court, like the Noble/SFU matter before, seems likely. After that it may go to the BC Court of Appeals. It could easily be a few years before any sort of definitive resolution is reached, assuming the Supreme Court of Canada doesn’t also feel the need to weigh in.
Should the courts rule that UBC’s subsidiaries are subject to the same FOI requirements as their parent universities, they’ll have to start fulfilling a backlog of FOI requests, many of which are already a number of years old. Most likely, a lot of new requests would be made.
It will be an important saga to watch. A decision in favour of UBC would seal the records of UBC’s corporate subsidiaries forever, or until a theoretical future revision of BC’s privacy laws. It would also prop open a significant loophole in universities’ disclosure requirements. Any records that the university doesn’t need to access directly could be shielded from the public if a university-controlled company happened to create and hold those records. While none of UBC’s current subsidiaries were created with the express purpose of shielding records, consider a scenario in which the university decides to convert an ancillary such as UBC Student Housing and Hospitality Services into a private company. All of its records would automatically become off-limits from the public. Even though privatization likely wouldn’t significantly alter the way SHHS is structured or how it operates, SHHS records that used to be available via FOI would no longer be available. A judge may find that to be correct, but is it really reasonable?