The practice of B.C. Ferries to post on its website responses to access to information requests before or at the same time the information is disclosed to the requester, is legal but "frustrates the purpose of access to information laws," concluded Information and Privacy Commissioner Elizabeth Denham.
Her remarks were contained in an investigation report issued on Monday, May 16.
In October 2010, after a seven-year hiatus, B.C. Ferries once again became subject to the Freedom of Information and Protection of Privacy Act. B.C. Ferries adopted a policy whereby responses to freedom of information requests would be posted on-line and made publicly available. This would happen either before or at the same time the person who actually requested the records received them.
Following complaints about the practice, the Commissioner conducted an investigation. While the Commissioner found nothing in the Freedom of
Information and Protection of Privacy Act prohibiting simultaneous disclosure, she found that it had the effect of pre-emptively "sharing the fruits of a journalist's labour with the public at large," which "impairs the information-gathering function of the media and other groups." In affirming the "unique and important role" of media in accountable government, the Commissioner stated, "I maintain that it is in the public interest to protect the ability of mainstream media to identify issues and instigate public dialogue in the first place."
The Commissioner delivered a set of best practices to be followed by public agencies in proactive disclosure programs, including a minimum 24-hour delay before publicly posting responses to access to information requests. The best practices included routine posting of executive expenses and calendars, contracts and audit reports.
"I am a strong proponent of proactive disclosure," Denham said. "However, there needs to be a balance between the interests of the public in proactive disclosure and the interests of the applicant. The balance is important to ensure that citizens robustly exercise their access rights, and in doing so, the purpose of the Act -accountable and open government - is realized."
The full text of the report can be found at: www.oipc.bc.ca.
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