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OIPC BC Ferries Decision

OIPC BC Ferries Decision

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Published by Chad Skelton

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Published by: Chad Skelton on May 16, 2011
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05/16/2011

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INVESTIGATION REPORT F11-02
INVESTIGATION INTO THE SIMULTANEOUS DISCLOSUREPRACTICE OF BC FERRIES
Elizabeth Denham, Information and Privacy CommissionerMay 16, 2011
Quicklaw Cite: [2011] B.C.I.P.C.D. No. 21CanLII Cite: 2011 BCIPC No. 21Document URL:
TABLE OF CONTENTSPAGEE
XECUTIVE
S
UMMARY
2
1.0 I
NTRODUCTION
22.0 I
NVESTIGATION
P
ROCESS
33.0 B
ACKGROUND
34.0 I
SSUES
55.0 D
ISCUSSION
56.0 P
ROACTIVE
D
ISCLOSURE PRACTICES
167.0 F
INDINGS AND
R
ECOMMENDATIONS
318.0 C
ONCLUSIONS
32Attachment 33Appendix A 35Appendix B 37Appendix C 38
 
Investigation Report F11-02 – Information & Privacy Commissioner for BC 
2
 ______________________________________________________________________________
 
EXECUTIVE SUMMARY
[1] In response to a complaint about the practice of BC Ferry Services Inc.(“BC Ferries”) of publicly posting responses to access to information requests,either before or at the same time as they are provided to the applicant(“simultaneous disclosure”), the Information and Privacy Commissioner for BritishColumbia conducted an investigation. The investigation examined both thepractice of simultaneous disclosure as well as the general practice of proactivedisclosure. The Commissioner found that the practice of simultaneous disclosuredoes not violate the individual right of access [s. 4(1)] or the duty to assist [s.6(1)] under the
Freedom of Information and Protection of Privacy Act 
(“FIPPA”).However, she concluded that the practice frustrates the purposes of FIPPA,because it may discourage some individuals, particularly the media, from makingaccess requests, thereby interfering with their ability to hold governmentaccountable.[2] The Commissioner identified best practices for proactive disclosure,including with respect to simultaneous disclosure. On the key issue ofsimultaneous disclosure, the Commissioner recommended a minimum delay of24 hours between the applicant’s receipt of the response and the time theresponse is publicly posted. There should be a further delay upon request by theapplicant on reasonable grounds. The Commissioner recommended thatBC Ferries modify its simultaneous disclosure practice to support the purposes ofFIPPA.
1.0 INTRODUCTION
[3] The availability of new and inexpensive internet technologies haveenabled a positive and growing trend in freedom of information toward proactivedisclosure initiatives. “Proactive disclosure” refers to steps public bodies take toprovide information to the public on their own accord, as opposed to providinginformation only when responding to a freedom of information request.The Internet has raised public expectations about the contents of websites ofpublic bodies and encouraged many of them to embrace “open government”initiatives. Proactive disclosure is a key element of such initiatives.[4] Public bodies across British Columbia are implementing various proactivedisclosure programs. These are laudable initiatives and I encourage publicbodies to continue them and expand them as they are able to do so.[5] However, there is one type of proactive disclosure which is troubling.That is the practice, adopted by BC Ferries, of simultaneous disclosure, which ispublicly posting the response to a freedom of information request either before orat the same time it provides a response to the individual who made the request(the “applicant”). In this report, I refer to this practice as “simultaneousdisclosure”.
 
Investigation Report F11-02 – Information & Privacy Commissioner for BC 
3
 ______________________________________________________________________________
 
2.0 INVESTIGATION PROCESS
[6] In a letter dated October 5, 2010, the BC Freedom of Information andPrivacy Association (FIPA) requested that I conduct an investigation under s. 42of the
Freedom of Information and Protection of Privacy Act 
into the practice ofBC Ferries in relation to posting information and records produced in response toaccess requests on its website, either before or at the same time as the applicantreceives them.[7] Given that the issues raised by the simultaneous disclosure practice of BCFerries have implications for proactive disclosure initiatives by all public bodies,I decided to broaden the scope of my investigation to also consider the generalpractice of proactive disclosure.[8] As part of this investigation, we posed a set of questions to selectedparticipants to this investigation, receiving 17 responses. The questions and thelist of responders are attached as Appendix A and B.[9] We also conducted research on developments elsewhere regardingproactive disclosure and simultaneous disclosure.[10] I am issuing policy guidelines concerning best practices for public bodieswith respect to proactive disclosure. I do this pursuant to my authority unders. 42(1) of FIPPA to make Orders or take other measures that promote thepurposes of FIPPA. These guidelines will inform public bodies in a prospectiveway about how I am likely to approach any proceedings to which they relate.
3.0 BACKGROUND
[11] BC Ferries has a freedom of information “Tracker Page” on its websitethat hyperlinks to documents it has disclosed in response to access requests;including the letter written to the applicant in response to their request.This letter reiterates what the person requested, indicates whether or notBC Ferries is granting access to the requested records and provides anexplanation of why information will not be disclosed, if that is the case.All requests and disclosed documents pursuant to those requests are posted,except for requests involving personal information.[12] The information on the website generally identifies organizations but notindividual applicants. The information can be searched by request summary,request details, applicant name, date of last update, status and fee information.Individuals can sign on to an email list, which allows members to receiveautomatic updates on the status of requests posted on the Tracker Page.BC Ferries reports that over 3,900 parties have signed up to the mailing list.

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