Request Denied, Again

In May 2011, we wrote a long piece about two intertwined privacy cases involving private subsidiary corporations of SFU and UBC refusing to disclose records under BC’s Freedom of Information and Protection of Privacy Act (FIPPA). You can also read a modified, more user-friendly version that appeared this fall in the Ubyssey. Despite a seven-year saga, both stories remained unfinished because the UBC side of things had been reset and sent back to the BC Office of the Information and Privacy Commissioner (OIPC) to be re-heard. This is an update to those articles.

Last week the OIPC re-ruled on their re-hearing of the UBC matter and reversed course. While the original ruling found in favour of Stanley Tromp, the journalist who requested records under FIPPA, the revised one found in favour of UBC.

UBC’s main arguments at the re-hearing were all of the arguments used by SFU, and that the conclusions reached by the BC Supreme Court justice based on those argument should be an appropriate precedent to apply in this case.

Tromp’s argued that the entire ordeal with SFU shouldn’t have any bearing on the UBC case because (a) it ended without a final resolution; (b) the BC Supreme Court justice in that case erred, and (c) the structures of SFU’s and UBC’s subsidiaries are not comparable.

On the first two of Tromp’s points, the adjudicator unambiguously disagreed. However, while the adjudicator agreed with the last point, the consequence of this was the opposite of what was intended. The adjudicator actually found UBC’s subsidiaries to be more independent than SFU’s. Using a stringent legal definition of “control” that had been defined in SFU’s case, he found that UBC does not have control of their subsidiaries in that sense and therefore they are not subject to FIPPA.

Stanley Tromp indicated immediately that he intends to appeal this case to the BC Supreme Court. However, he may not have to. The ground is quickly shifting under FIPPA. On October 4, 2011, the BC Government tabled long-awaited amendments to FIPPA in the legislature. This had been in the works for years. While it contained a number of changes, what was omitted was even more interesting.

Summarizing the changes on her blog, Eileen Vanderburgh (who represented SFU in their case against David Noble) pointed out the following:

Some of the recommendations made in the 2010 Report of the Special Committee of the Legislature were not included in Bill 3, for example, the recommendations to expand [...] the definition of “public body” to include corporations created or owned by a public body.

However, on the very same day that the revised UBC-Tromp decision was released, the OIPC also released a letter from Elizabeth Denham, BC’s information and Privacy Commissioner, to Margaret MacDiarmid, Minister of Labour, Citizens’ Services and Open Government. In the letter, Denham asks MacDiarmid to include language in the current FIPPA amendments specifically to ensure private subsidiaries of public bodies are included in FIPPA.

My office has consistently interpreted the term “control” in a liberal and purposive manner that promotes the objectives of British Columbia’s access and privacy legislation. This has ensured that the public has access to the information necessary to hold public bodies accountable, especially with the expenditure of public funds. It has, until recently, been an approach applied by the Courts.

The effect of the SFU ruling, Denham notes, is what she terms an “accountability gap”:

This ruling effectively exempts from accountability under FIPPA, public bodies like universities, which conduct some of the public’s business through wholly owned and publicly funded subsidiary operations.

In the legislature yesterday, MacDiarmid was being questioned on the proposed FIPPA amendments by NDP MLA Doug Routley. Routley proposed an amendment (different than the one proposed by Denham) with the intention of including private subsidiaries within FIPPA. MacDiarmid’s response was that her ministry will be working on it with Denham. Things are looking up for transparency within BC Universities. You can bet we’ll continue to keep an eye on it.