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Recommendations to the special committee
to review the Freedom of Information and Protection of Privacy
Act
from theBritish Columbia Archives Action Group
1265 Montrose Avenue, Victoria, B.C. V8T 2K3
INTRODUCTION
The British Columbia Archives Action Group is an active organization
of historians, researchers, journalists, genealogists, and
students founded in 1995. The members of the group have a
professional or personal interest in the preservation of government
records for historical use and in the maintenance and restoration
of an effective and efficient public archive in the Province.
The reason for this brief and our appearance before you is
a product of our concern about the adverse effect which the
present Freedom of Information and Privacy Act, as interpreted,
has had on historical research in this Province. It is our
strong belief that a society's understanding and perception
of itself and its present state is closely related to the
extent to which it is aware of its history. Too often, in
the past, as well as in the present, decisions are made in
Canada and in British Columbia in the realm of politics, economics
and social planning which betray a deficient understanding
of our history, the influences and forces which have shaped
our cultures, institutions and human relationships and help
explain our approaches to politics, economic development and
cultural diversity. If decision-makers have at best a hazy
appreciation of
the historical record and its messages, so do many citizens
of British Columbia, despite the relevance of that material
to major issues of public policy facing government and the
electorate.
The insights which history provides into our past come through
the work of a dedicated group of people who do historical
research -- academics from a variety of disciplines, students,
especially those in high schools, colleges and universities,
popular historians, biographers, journalists, novelists contract
researchers and genealogists. It is these people who plumb
the archival, library and museum resources to describe to
the rest of us the rich context of our histories, and the
dark, as well as the light, features of the human experience
and relationships in this part of North America.
Many of these researchers and writers are impelled not by
the prospect of financial reward, but by a natural curiosity
and a desire to know more, and to share the knowledge they
have gleaned. One can find the work in bookstores and libraries,
covering a wide range of issues and personalities. It is through
these efforts of these people that we know something about
the Province's lively political history; the often strained
history of white-aboriginal relationships; the treatment of
ethnic minorities - Chinese, Japanese, Sikhs and Doukhobors;
the risk takers responsible for the economic development of
the Province, the struggles of labour, and the growth of specific
industries; and social relations in both urban and rural areas,
to name just some of the topics addressed in recent years.
There is, of course, much more to know.
This type of research has suffered since the introduction
of the present Freedom of Information and Privacy Act, because
categories of records which were freely available before the
legislation have become off bounds, or subject to such involved
scrutiny before release that researchers become frustrated,
and in some instances, give up the struggle. We are not
suggesting that there should be "open season" on
all records, regardless of privacy implications. We recognize
that limits are necessary to protect personal information
and certain types of government documents. What we disagree
with is the assumption that the only way to protect privacy
and confidences is to impose extended time periods before
records are open to researchers. To our knowledge there is
no evidence to suggest that before the legislation, there
was abuse of privacy by historical researchers. The system
which was subject to specific protocols for particular collections
of materials, generally proceeded on the assumption that historical
researchers were responsible people who could be trusted to
access and use
the material discovered sensibly and sensitively. It was
run by archivists who were sympathetic to the goal of research,
yet well aware of the need to provide direction, and apply
restraint where that was necessary. What has replaced this
system is an unwieldy and expensive bureaucracy designed to
monitor access in a way which too often subverts the cause
of serious
research and thus learning.
RECOMMENDATION 1: Records that were archived and already
open to the public on the date the Freedom of Information
and Privacy Act (FOI/PA) came into effect be exempted from
the act.
Rationale:
1.1) By the time records reach public archives they have
ceased to be in active use and are of primarily historic importance.
1.2) Prior to the implementation of the act, archived material
was generally considered "open" to public scrutiny.
When sensitive material was deposited in the archives, it
was identified and restricted. The FOI/P legislation has reversed
this arrangement. All material in the archives became "restricted"
including that which the public had full access to, until
reviewed and "opened" by a FOI/P official.
1.3) Large numbers of government records that were already
in the public domain before the implementation of the Freedom
of Information Act have since been closed to researchers.
This has created a number of anomalies. Many researchers find
that they can no longer finish research that they started
before the implementation of the act. Also, it is now impossible
for recent researchers to verify the work of earlier researchers.
1.4) The application of the act has resulted in enormous
and unnecessary costs in staff time for the government as
officials must review material that researchers have been
using for decades.
The act has also resulted in long and unnecessary delays
for researchers. These delays are not only an inconvenience
and impede historical research, they have prohibited students
who only have a single term to complete research projects,
from using historical records, and
impose large costs on out of town researchers.
RECOMMENDATION 2: That the government freeze the service
fees for processing FOI/P requests and consider means to ensure
that the existing fee structure does not impede legitimate
research.
Rationale:
2.1) Already the costs of processing FOI/P requests is limiting
the ability of students, historians, legal researchers and
others to engage in legitimate and important research. Students
simply cannot afford research which involve high fees. The
result is that important graduate work is impeded. This is
particularly true of social history -- history of the ordinary
people or groups as opposed to the elite. The elite often
left their own records. Social history, the history of workers,
women, aboriginal people, immigrants who left few personal
records, relies heavily on routinely generated government
records. The regular use and expedient processing of research
agreements as provided in section 35(d) of the Act plus the
above amendment in recommendation 1 should eliminate the need
for additional service fees.
2.2) Government records are compiled on behalf of the people
of this province in order to serve their needs. The people
of British Columbia have paid for the compilation of these
records and should continue to have access to them.
2.3) Students, journalists, scholars, and other researchers
who are engaged in research that is in the general public
interest should not have to bear the costs of research that
will benefit the larger populace.
RECOMMENDATION 3: That the definition of personal information
be clarified to ensure that records generated by an employee
of the government or of a public body acting in their official
capacity are not considered private solely on the basis that
they may offer an opinion. Opinions offered by employees of
the government or of a public body in their official capacity
should not be considered private unless they come under some
other section of the act concerning, for example, third party
information.
Rationale:
3.1) Researchers have found that routine correspondence of
government officials, a game officer in a particular case,
was considered private on the grounds that the game officer
was offering personal rather than official opinions.
3.2) Not being able to name a government official who has
played a role in shaping policy through the enforcement of
regulations reduces our ability to understand how government
works and effectively reduces the ability of the public to
hold government accountable.
RECOMMENDATION 4: That the time periods during which various
types of material is closed to researchers be reviewed. The
regular use and expedient processing of research agreements
as provided in section 35(d) of the act should be considered
in connection with the following. In particular:
4 A) Section 36 be amended so that the general restriction
which closes private information be changed from 100 years
to 70 years and from 20 years after the death of an individual
to the date of the death of the individual.
Rationale
4.A.1) That information which is highly personal at the time
a record is generated is usually less sensitive as time passes.
The current 100 year rule recognizes this but limits this
information beyond a reasonable time frame.
4.A.2) The 70 year time limit brings the legislation into
line with similar limits in other jurisdictions including
Alberta.
4.A.3) The shorter the time information has to be monitored
and kept restricted reduces the cost to government of reviewing
archival requests to ensure no privacy is breached.
4 B) Section 14 be amended so that a time limit of 15 years
be placed on the period during which legal advice is considered
private.
Rationale:
4.B.1) at the moment there is no limit on the time which
these records containing legal advice are considered private.
Unless a time frame is indicated these records will be sealed
in perpetuity. Recently the Ministry of the Attorney General
drew the attention of the Archives to this fact and the Archives
closed all government records dating back to before British
Columbia joined Canada. Since then an informal protocol has
been established but the Act still needs amending.
4.B.2) The solicitor-government relationship is not entirely
parallel case to solicitor-client privilege. First, the government
never dies so without specific limits this information is
closed in perpetuity. Second, it is often difficult to determine
what legal advice is policy oriented and what is advice regarding
the law. The public is entitled to know policy advice to cabinet
after 15 years. Third, the government is acting on behalf
of all British Columbians and after a reasonable period of
time those citizens are entitled to know what advice the government
received and what it acted on.
4.B.3) The time period of 15 years brings the protection
in line with that now extended by the Act to advice to cabinet
and other similarly sensitive advice.
4 C) Section 21 be amended so that business interests of
a third party be sealed for 15 years instead of the current
50 years required by the Act.
Rationale:
4.C.1) The exemption extended to business interests of a
third party is longer than that extended to advice to cabinet
or other similarly sensitive material. Fifty years is an unnecessarily
long period and bears no relation to any legal requirement.
4 D) Section 15 be amended so that a time limit is established
for the closure of information relating to criminal justice
matters. We recommend that 15 years after a case is closed
be used as a general rule with exemptions granted to law enforcement
files which remain "open".
Rationale:
4.D.1) This provision is designed to protect current law
enforcement activities. Yet, at the moment these records may
be sealed perpetually. It is against the public interest which
demands confidence in the system of law enforcement to keep
these records sealed in perpetuity and thus inaccessible to
researchers.
Respectfully presented on behalf of the British Columbia
Archives Action Group by:
Dr. John McLaren Dr. John Lutz
Faculty of Law Department of History
University of Victoria University of Victoria
jmclaren@uvic.ca jlutz@uvic.ca
721-8162 721-7392
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