January 2008
Victoria, BC–It should be easier for environmentalists to get records from the Ministry of Environment, thanks to the efforts of ELC students Scott Giesbrecht, Jamie Thornback and Melinda Skeels. Their work helped trigger a wholesale reform of how the Ministry of Environment deals with Freedom of Information (FOI) requests. On January 22, 2008, the BC Commissioner of Information and Privacy issued a report (OIPC-Report_IR_F08-01) detailing how the complaint they worked on has now led to broad reform. In 2005, Scott collaborated with Sierra Legal Defence Fund (now Ecojustice Canada) to file a complaint against government. The complaint alleged a system-wide pattern of acting to frustrate environmental groups that seek public records. In support of the complaint, Scott put together a documented history of over a dozen instances where environmental organizations were stymied in their attempts to acquire government records. Brought on behalf of the Wilderness Committee, Raincoast Conservation Society, West Kootenay EcoSociety, West Coast Environmental Law, the Dogwood Initiative, Shawnigan Lake Watershed Watch and the T. Buck Suzuki Environmental Foundation, the complaint alleged:
- routine delays in responding to access requests,
- excessive censoring of records,
- excessive and unreasonable fees, and
- frequent denials of fee waivers.
In response, the Information Commissioner’s office conducted a preliminary investigation that gathered data on how environmentalist requests were being dealt with. The data gathered demonstrated that, indeed, there was some basis for the allegation of systemic problems with requests made to the Ministry of Environment. The Commissioner found that environmental groups faced “an extraordinarily long average processing time”, and were charged fees at a rate twice the average rate. Confronted by this data, the Ministry agreed to totally revamp the way it was responding to environmental group FOI requests. Meeting with ELC students, Ecojustice Canada and the Wilderness Committee, the Ministry agreed to an action plan to resolve the complainants concerns. BC’s Information and Privacy Commissioner has now issued a report on the complaint, and on the resulting Action Plan. Under the Plan, the Ministry has agreed to:
- Deliver an Executive Message to all staff, directing them to meet statutory deadlines for responding to information requests, and encouraging establishment of speedy, informal information disclosure practices;
- Deliver an annual Report Card to environmental groups documenting the Ministry’s record for the year in meeting processing time deadlines; the fees charged environmental groups; and Ministry actions that led to reviews/ complaints/investigations by the Office of the Information and Privacy Commissioner.
- Conduct ongoing communication with environmental representatives about environmental group complaints and concerns.
- Implement a new tracking system for requests;
- Enhance the Information Program for Effective Responses;
- Implement the following nine changes to the manner in which it processes access requests:* Abandon the use of “sensitivity ratings” in the government’s case tracking system;* Consider reducing the number of official “sign offs” required before records are released;*Not disclose a requester’s name to government program areas, unless the requester consents — or where the request could not be processed otherwise;
* Consider fee waiver requests sent in with an access request, without the need to resubmit a fee waiver request after the fee has been issued;
* Improve explanation for how any fee estimate was calculated––provide more detail;
*Re-assign authority for making decisions on fee waiver requests to a more senior position in the Ministry;
*Provide explanation when documents are severed from a response package for being “out of scope” or non responsive;
*Use phased release where appropriate, delivering documents as they become available, instead of delaying them until all other documents are located, and,
* When staff go on vacation or are otherwise unavailable, files will be assigned to other staff who will ensure that the request is handled in a timely manner.
It is hoped that the Commissioner’s Report and the new Action Plan will help environmental groups get the information they need to better protect the environment. As in the past, the Environmental Law Clinic will be ready to help groups that have difficulty obtaining government records.