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Governments fear of ‘misinformation’ is no excuse for more government secrecy

On April 7 during the Freedom of information and personal privacy committee meeting, Lawyer and BC Freedom of Information and Personal Privacy Commissioner Michael McEvoy informed the committee the purpose of the Freedom of Information and Personal Privacy Act and what it means for our democracy.

The advancement of the information and privacy act is critically important to serving the publics interest.

“we live in a democracy we can be thankful for. But too often i think we take it for granted” said Michael McEvoy “fundamental to our democratic governance is its carefully calibrated systems of balances and checks between citizens and who make decisions on our behalf”

“what is the check or what is the balance?” he asked and added “an important part of the answer is The freedom of information and privacy. “

“It checks how public bodies collect and use personal information about us and just as important it opens the door to the information associated with governing us balanced of course by narrow exceptions of that right, or at least that’s the way it should be.”

“What is clear is that the system of checks and balances have somewhat eroded with time. It reminds us we cannot take this part of our democratic foundation for granted. It’s why your [the committee] work is important and why it matters.”

Todays presentation will be about a more detailed set of recommendations to fortify and advance the The freedom of information and protection of privacy act

British Columbians care deeply about the legislation this committee is charged with reviewing.

McEvoy warned about certain important checks in FIPPA that have been eroded over time.

The first concerns section 13 of the act, unfortunately because of serious mishaps in various court decisions now meaning the public’s right of access to records has been significantly undermined.

Section 13 of FIPPA allows the public body to go more in to secrecy and withhold information that would reveal policy advice or recommendations when it is only meant “to enable full and frank discussion of policy issues in the public service.”,

“However, what is now considered to be advice or recommendations that a public body can withhold from public release has gone far beyond what was intended by the Legislature in 1992. Specifically, advice and recommendations have been defined to include factual, investigative or background material, including the assessment or analysis of such material and professional or technical opinions.” McEvoy said.

“At a time when disinformation runs rampant, facts are in short supply and the public struggles to understand those basic facts on which government makes its decisions, the letter in spirit of the act and public trust in it are undermined when those basic facts, giving rise to decisions, are kept behind closed doors. This recommendation to affirm what the act’s drafters’ intended, whereby factual material should not be withheld, has been advanced to and supported by past special committees which have considered the matter.”

“The second check sustaining erosion concerns not what the Legislative Assembly put in the act but what the courts have added to it. Section 14 of FIPPA is precisely and properly drafted to allow public bodies to protect privileged communications with their lawyers. That’s it. No other kinds of privilege are included. By way of comparison, Alberta’s access legislation provides for both solicitor, client and something called settlement privilege as a basis for withholding information from a requester.”

During the question period BC NDP Henry Yao asked Michael McEvoy if they could have more government secrecy to so-called “combat misinformation”.

BC NDP Henry Yao, Richmond South Centre insisted his hope is to combat “misinformation” and he claimed his fear is giving the public access to the information it may cause “people to exponentially create conspiracy theory”.

NDP Yao then floated the idea of a “certified journalist body” the public documents would filter threw, he didn’t give any examples of what would qualify a so-called “certified journalist”.

The so-called “certified journalist”, Yao claims are the only people that can understand the information. However reading and comprehension skills are required to graduate high school so this would come as an insult to millions of British Columbians

In theory he would want to restrict public access to the data while still empowering the public to “hold our government accountable”. His solution was to create a regulatory professional body, a so-called “certified journalist body” where they can claim all the information is “based on facts” but the public wouldn’t be able to cross reference the journalists investigation but looking at the same documents.

“I would hope in the way government would do proactive disclosure that would be done in a clear, concise, understandable way so it does not require any mediating forces” said Michael McEvoy. Adding “I know there is a concern on the part of public bodies, at times — I’ve heard it directly from a number of them — that they are concerned about disclosing certain information because people wouldn’t understand. That cannot be a basis for withholding information.”

He went on to explain how most public bodies have communications arms. If there’s a concern about what a certain record or document means, they can explain that to the public.

McEvoy reminds the committee we live in a democracy and we must provide the information to the public even if there is a risk of someone misinterpreting the information. What we can do to counter the misinformation is to debate.

“That’s part of the nature of the system. The information gets out there. Some may have a different interpretation of what it means. That’s the nature of living in a democracy. Again, it can be debated what a decision means or the rationale for a decision. That’s something that, again, if government or public bodies feel they need to explain the information, of course, they will, and they should.” said McEvoy.

Governments like to push the envelope for more secrecy and move further away from releasing info to the public but then that will remove transparency and oversight that can lead to the government acting badly if it doesn’t need to worry about the citizen checking in on them.

“Sometimes it results in answers that may be of — well, I’ll say it straight out — embarrassment to the government or public body. That’s the nature of the system. That’s why it’s there: to cast transparency on what has transpired and allow the public to make a judgement about those things”

To read the full transcript click here

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