Investigation into proactive disclosure by public bodies

The Office of the Information and Privacy Commissioner is conducting an investigation

into the practice of proactive disclosure of information by public bodies. This Office
generally promotes proactive disclosure because it enhances openness and
transparency in the public sector and is an efficient and cost-effective means to provide
individuals with access to information. However, concerns have arisen about how the
practice of proactive disclosure is being conducted by some public bodies in British
Columbia. As a result of this investigation, we wish to, among other things, make
recommendations to public bodies on best practices for proactive disclosure.

Proactive disclosure of information is where public bodies make their records publicly
available without waiting for requests from individuals. An example of proactive
disclosure is the publication of salaries of senior executive on agency websites.

The investigation will include consideration of the practice of proactive disclosure of

information and records in a general sense, with the exception of open data initiatives.
We wish to identify the hallmarks of a model proactive disclosure policy as to how, when
and what information is disclosed.

We will also consider the specific practice of the proactive disclosure of responses to
access requests and, in particular, the following matters:

• Whether public bodies should proactively disclose responses to access requests

• Whether there are time sensitivities that need to be taken into account in the
proactive disclosure of responses to access requests

• Whether public bodies should notify others when responses to access requests are
made available to the public
• Whether there are time sensitivities in the length of time responses to access
requests are posted on a website

• Whether names of applicants and/or the identity of applicant type should also be
proactively disclosed

• Whether public bodies should charge fees in the usual way

Interested parties are invited to comment on the above matters by responding to the
following consultation questions.

Consultation Questions

Proactive disclosure

1. What, in your view, are the essential elements of a robust proactive disclosure
practice?

We have no position on this question.

2. Are there any particular types of data that should be proactively disclosed?

Remuneration, contracts awarded, inspection data, audits and expenses.

3. Are there any particular types of data that should not be proactively disclosed?

No.

4. What, in your view, are the thorny issues that must be addressed in the practice of
proactive disclosure?
We don’t see any thorny issues when it comes to proactive disclosure. All of our
concerns relate to the posting of records released in response to Freedom of
Information requests. We address those concerns in more detail below.

5. What are the time sensitivities involved in the proactive disclosure of data?

Aside from FOI requests, we don’t believe there are any.

6. Are you aware of proactive disclosure practices of public bodies in BC or in other

jurisdictions that are good models for us to consider?

No.

7. Are you aware of particularly poor practices or lessons learned elsewhere?

No.

Proactive disclosure of responses to access requests

Public interest in access to information

1. In your view, does the proactive disclosure of responses to access requests serve
the public interest in access to information?

Yes.

But the public interest is best served by creating a window of time — whether two
weeks or a month — in which the original requester can review the documents before
they are released to the public. Such a short delay does little to disadvantage the
general public. After all, these are records that were never made public before and that
the government agency felt no need to make public before the FOI request. However, a
brief delay would create two key benefits:
● It would maintain the incentive for people to file requests and pay fees. After going
through the considerable expense and hassle of pursuing an FOI request, the original
requester deserves some courtesy to review the records first.

● When the requester is a media outlet, the window of time gives the reporter a chance
to carefully review the documents, reflect on them and ask the government agency for
comment. This increases the chances that any reporting on the records will be more
accurate and the public will not be misinformed by errors caused by a rush to
publication.

One of the challenges in the debate over whether government agencies should post
Freedom of Information records online, in our view, is that the practice has been
mistakenly labelled a form of “proactive disclosure”. It is nothing of the kind.

Proactive disclosure is a government agency voluntarily publishing records and data

online that it believes will be of use and interest to the general public.

The practice of posting FOI records online is something else entirely. It is taking records
the government agency was forced by law — and possibly against its wishes — to
release and quickly posting them online in order to make life difficult for the original
requester. If the records being posted were, indeed, of such great, and imminent, public
interest that they need to be posted immediately, why did it take an FOI request for the
agency to release them?

2. In your view, does the proactive disclosure of responses to access requests

contravene any provisions of the Freedom of Information and Protection of Privacy
Act? If so, what sections and why?

Yes. We believe that posting FOI records online simultaneously with their release to the
original requester violates the Section 6 requirement that agencies “make every
reasonable effort to assist applicants and to respond without delay to each applicant
openly, accurately and completely.” Posting records online disadvantages the requester
as they have had to put in the time and expense to file the FOI request but then have no
preferential access to the records beyond that provided to members of the general
public, who did not have to devote time and money towards making the request.

3. If you are of the view that proactive disclosure of responses to access requests
discourages individuals from making access requests, please provide us with
evidence of that.

Most of the FOI requests filed by The Vancouver Sun are sent off by reporter Chad
Skelton. Since his initial flurry of FOI requests to BC Ferries on Oct. 1, the first day it fell
back under the Act, Chad’s requests to the ferry corporation have declined
considerably. He has not filed a single request to BC Ferries since Oct. 8 — a direct
result of the fact any records The Sun obtains will be shared with our competitors. BC
Ferries FOI policies have also affected how we deal with fees. We have abandoned a
number of requests to BC Ferries because we have been asked to pay a large fee for
them to be processed. We have dropped these requests precisely because we have not
been able to justify the expense given any records we receive will be given to our
competitors at the same time as they will be given to our newsroom. We have also filed
more fee-related complaints against BC Ferries, even over small amounts, than we
normally would because we cannot justify paying fees for records that will be posted
online for everyone. This increase in complaints has, incidentally, created additional
work for the Commissioner’s office.

The only other agency in B.C. which posts FOI records online is the Vancouver Police
Department. There, too, our requests have become less frequent due to the effect the
posting policy has on the exclusivity of any information we obtain. Chad has not filed a
single request to the VPD since last August. In contrast, we filed a number of Access to
Information requests to the RCMP this fall.

In our view, while FOI policies like BC Ferries’ discourage reporters from taking the time
to file requests, the biggest disincentive relates to fees. It is very hard for a newsroom to
justify spending hundreds, or thousands, of dollars for internal government records
when its competitors can piggyback on those requests for free. The fact that news
organizations are willing to spend money — both in staff time and FOI fees —benefits
the public by providing a vital public watchdog service. Discouraging that practice will, in
the long run, reduce the public’s access to government information, not increase it.

4. Are there time sensitivities that should be taken into account in publishing responses
to access requests? In particular, do you have any concerns with respect to
simultaneous disclosure to the applicant and to the public?
As mentioned, we believe that a window of time — ranging from two weeks to one
month — should be given to the original requester as both a courtesy and to encourage
accurate reporting.

In the short time that BC Ferries has been posting FOI records online, there have been
at least two cases where media outlets made serious mistakes in covering the records
released. In one case, several media agencies reported that BC Ferries CEO David
Hahn’s salary quadrupled in recent years, when in fact it had only doubled
(http://communities.canada.com/vancouversun/blogs/papertrail/archive/2010/12/22/bc-
ferries-shoots-itself-in-the-foot-with-freedom-of-information-policy.aspx). And a media
outlet referred to Hahn complaining in a memo of “interference” from the Transportation
Safety Board, when in fact he was concerned about the “inference” the TSB report
could leave people with
(http://communities.canada.com/vancouversun/blogs/papertrail/archive/2011/01/25/bc-
ferries-freedom-of-information-policy-leads-to-more-media-mistakes.aspx).

The policy is made even worse by BC Ferries’ habit of posting records late in the day,
when news outlets are close to their deadlines and have less time to seek comment on
the records released
(http://www.vancouversun.com/health/Ferries+dumps+news+reporters+late/4110557/st
ory.html).

Media outlets must, of course, take responsibility for their own mistakes. But the number
of errors that have been associated with the relatively few newsworthy BC Ferries FOI
has released so far is striking and, in our view, not a coincidence. By posting FOI
records online, BC Ferries encourages media outlets to race each other to publication.

This is in stark contrast to the usual state of affairs with FOI requests, where the original
requester has ample time to seek comment from the agency in question before
publication or broadcast, secure in the knowledge they are the only ones who have
copies of the records in question.

One might argue that media outlets often have to race their competitors to get the story
out with things like news releases, government reports and court judgments. But all
three of those records are usually designed by whoever wrote them to be clearly
understood. Or, even when they’re not clear — or dense, like a court judgment — they
follow a standard template that reporters are trained to understand.

FOI records, in contrast, are often fragmentary (due to heavy redactions) and can quite
often be out of context. Things like stray emails, PowerPoint slides or billing records can
be incredibly hard to understand without the proper time to review them and the
opportunity to get appropriate comment from the government agency in question.

Some have argued that, regardless of whether or not FOI records are posted online,
media outlets should wait until they can properly review the records and seek
appropriate comment — in short, that the policy of posting FOI records does not force
the media to change its behaviour in covering. Such comments do not reflect the reality
of how the media operates. The news media is a very competitive industry and all
outlets, whether TV, radio or print, put a premium on being first — whether the story is a
government announced or a posted FOI request. One can bemoan this state of affairs
— and no doubt it sometimes results in stories that are first and wrong. But it is the way
the news media operates and any “best practices” when it comes to proactive
disclosure of FOI records must take into account that reality.

The idea that journalists should be given a window of time to understand records before
publication is also not a new one. Indeed, the government invokes such a practice each
year with the annual budget lockup. The way FOI requests are usually handled, where
the original requester alone is provided with the records, gives the requester the time to
report on them responsibly. Posting FOI records online increases the risk of error, which
is in the interests of no one: not the media outlet, not the government agency and not
the public.

5. Should public bodies notify others when responses to access requests are made
available to the public? What are the time sensitivities?

Assuming the original requester is given a window of time to review the records, we see
no problem with notifying others (through email lists, for example) when the records are
posted online.

6. How should responses be made publicly available? If they are posted on the
website are there time sensitivities as to when they are posted and for how long?

If a government agency is truly interested in transparency, it should make FOI records

available online permanently — as most agencies already do with other government
reports and news releases. At the very least, the records should stay up for a year or
two. BC Ferries’ policy of removing the records (and even the details of the request
itself on its “FOI Tracker”) after just three months is a poor practice and, in our view,
undermines its argument that the posting policy is designed to increase transparency.

While at one time the cost of storing so many FOI records online could be a significant
expense, it no longer is. Data storage and data transfer have become incredibly cheap
over the past few years years — either when purchased directly or through third parties
like Amazon Web Services.

If posting these records in the first place is in the public interest, so is keeping them
available for as long as possible. Most of these records are not hugely time sensitive
and a member of the public doing an Internet search a year or two after records are
posted might find something in an FOI record that is of great importance to them.

7. Should the names of applicants and/or the identity of applicant types be publicly
disclosed?

We don’t have a problem with our requests being identified as coming from The
Vancouver Sun. However, we believe in some cases identifying the name of the
organization that made the request has the effect of identifying the individual who made
the request — and possibly discouraging them from making future ones. For example,
some advocacy groups may only have one or two staff members. Identifying those
groups by name is essentially identifying the individual who made the request.

8. When public bodies are engaged in proactive disclosure, should they charge fees to
applicants in the usual way?

We don’t believe it’s fair for an agency that plans to publish all records released in
response to a Freedom of Information request to charge all the fees associated with
processing that request to a single requester.

Indeed, it’s worth noting that the Vancouver Police Department has a general policy of
not charging fees for processing FOI requests precisely for this reason.
Fairness aside, we believe that, by publishing FOI records online for everyone,
agencies should apply the public-interest fee waiver contained in Section 75(5)(b). If an
agency, like BC Ferries, believes an FOI request is of such public interest that it posts a
notice on its website as soon as the request is received, posts the records the moment
they are released to the requester and sends out a news release to everyone that it has
done so, we believe they are implicitly acknowledging that the records in question are of
vital public interest. They should not then be able to turn around and argue that the
records they worked so hard to make public are actually not of any interest to the public
at all.

Public interest in access to information by media

1. What is the public interest in access to information by media?

The news media are one of the most frequent users of the Freedom of Information Act
and the primary means through which the general public is informed about internal
government records. Most citizens do not have the time or inclination to file FOI
requests and most do not have the time to sift through raw government record dumps to
see if there is anything in them that interests them.

The public relies on the media both to make the FOI requests which result in records
being made public and in sifting through those records to report on the things in them
that are newsworthy. For all its talk of transparency, I would be interested to know how
many times the FOI records posted by BC Ferries have actually been downloaded. I
would be very surprised if it is more than a couple hundred times per record. The fact is
the public doesn’t have the time to go through FOI records themselves. They rely on the
media to do that job for them.

2. What are the advantages and disadvantages to media of proactive disclosure of

responses to access requests?

Proactive disclosure — if implemented without a courtesy window of time for the original
requester — puts those media outlets that invest in Freedom of Information requests at
a disadvantage because their competitors who do not invest that time and money get
the same records at the same time. Over time, this will discourage those media outlets
that file FOI requests from doing so, because it’s a better use of newsroom resources to
just sit back and report on someone else’s FOI request than to file their own. The
problem is that, over time, this will mean no one will be filing requests — or won’t be
filing them very often.

The advantage to proactive disclosure, if done with a courtesy time window, is that it
creates an archive of government records that can be a valuable resource for journalists
in the future. A reporter investigating hospital cleaning contracts, for example, could
quickly find past FOIs on the topic rather than having to file brand new requests.

3. If you are of the view that journalists are disadvantaged by proactive disclosure of
responses to access requests, please provide evidence of that.

While media outlets have a public service obligation, one of the key reasons why they
file FOI requests is to “get a story” — ideally one that their competitors don’t have. It is
this incentive that encourages reporters to spend hours filing often-fruitless FOI
requests, for editors to pony up hundreds or thousands of dollars worth of fees to obtain
internal government records and to, where necessary, fight agencies redactions with
complaints to the Commissioner’s Office.

However, while the media’s interest in filing FOI requests is partly self-serving, that self-
interest results in FOI requests that serve an important public service. Using FOI
requests, media outlets in B.C. have broken several major stories, including possible
fraud by lottery retailers (http://www.canada.com/vancouversun/news/story.html?
id=5ab3fa76-8bb0-4ef8-ba78-39a9342b2c3f) — a story which resulted in an
investigation by B.C.’s Ombudsman and the firing of the head of BCLC. Recently, The
Vancouver Sun has also used FOI requests to access government databases of
immense interest to the public, on topics such as public-sector salaries
(vancouversun.com/pay/) and daycare safety ratings (vancouversun.com/daycare/).
These databases have received literally millions of hits, showing the immense public
interest in what they contain.

We should also note that, given the complexity of the data involved, most of our major
database projects have involved several weeks of work simply to get the data in a
format in which it can be analyzed — and then weeks more to get the appropriate,
detailed comment from the agencies that created that data. The fact the data we’ve
received through FOI was ours alone allowed us to approach these projects as
responsibly as we possibly could, working with government agencies to avoid mistakes
and misinterpreting data.

If the incentive to file FOI requests is removed, media outlets — including ours — will
inevitably file fewer of them. Which will mean fewer stories of interest and importance to
the general public.
Comparative information

1. Are you aware of good models of proactive disclosure of responses to access

requests practices of public bodies in BC or in other jurisdictions?

The Department of National Defence posts a lists of records it has released through
Access to Information, which members of the public can then request copies of
(http://www.admfincs-smafinsm.forces.gc.ca/aip/cr-dc-09-eng.asp). The policy ensures
public access to the records in question but still gives a window of time to the original
requester to review the records they have requested.

2. Are you aware of particularly poor practices or lessons learned elsewhere?

We are not aware of other jurisdictions that have implemented a policy similar to the
one adopted by BC Ferries.

Please forward your responses to Helen Morrison, Senior Policy Analyst by fax or e-
mail by Friday, March 11, 2011.

fax: 250.387.1696

e-mail: hmorrison@oipc.bc.ca

Should you have any questions or concerns, please contact Helen at 250.953.4193.