Fun and Games with FOIPP: Part One

Some of you may remember me complaining in January that I was forced to place a Freedom of Information (FOIPP) request to receive a copy of an internal review of the FOIPP Act.  At the time I thought it was the height of irony. I wanted to see the report because government had launched a consultation with the grandiose title “Open and Accessible Government--Modernizing the Freedom of Information and Protection of Privacy Act.” I was eager to participate in such a monumental endeavour, and immediately asked the Minister Responsible, at the time Premier Wade MacLachlan, to table the internal review.

Sadly it was not forthcoming, so I placed a FOIPP request.  We waited 30 days and were then informed that we would have to wait 30 more days while the department consulted with third-parties who may be impacted by the disclosure.  I found that odd since it was an internal review and the only third party involved was PEI’s Information and Privacy Commissioner. But nonetheless, I patiently waited. Finally, just before the 60 day mark, we were informed that the document had been made public on the government website and we were sent a link.

We used the Internal Review extensively in our submission to the public consultation, but we also researched recent developments in Canada and elsewhere, taking government at its word that it was interested in actually modernizing the Act. In alignment with the ambitious title of the consultation document, we called our response Leapfrogging Ahead of the Pack: Achieving Leadership in Transparency and Accountability.

Several months later, government tabled their amendments to the FOIPP Act.   We felt the amendments fell far short of the promise of “modernizing” the Act.  So during Question Period, my colleague, Hannah Bell, asked the current Minister Responsible, Jordan Brown, how many submissions were received and he replied “The direct answer to that question was over 40 submissions and my recollection is that the good portion of them were similar or greater in length to the submission that was received by the third party.”  Well, that really impressed us, since our submission was 20 pages long and had 21 recommendations. So we asked him to table the responses, which he wouldn’t do, claiming that those who made the submissions did so with the expectation of confidentiality (Pro Tip: When the Office of the Third Party undertakes consultations we inform people in advance that their comments may be made public, and offer them the option to request confidentiality.)

You can probably guess what comes next.  We FOIPPed the submissions, we waited 30 days, we were told that third-party consultations were underway, we waited an additional 30 days, and we received the documents. Imagine our disappointment to discover that in reality none of the submissions “were similar or greater in length” than ours.  The closest was an eight page document that was entirely redacted under sec. 25(1) of the FOIPP Act, so I can’t tell you who it was from or what it was about.

All this raises the question: why are we constantly being forced to seek information through FOIPP when that information should be made publicly available through other means?  In my three years as an MLA, I have submitted seven written questions through the legislative assembly, yet only two of those questions have ever been answered. I have repeatedly asked Ministers to submit documents to inform debate in the legislature and been refused. During the review of estimates last spring, Hannah Bell asked Chris Palmer, the Minister of Economic Development, to submit multiple documents, and he agreed to bring back what he could. So far we have received nothing, and he has not responded to, or even acknowledged Hannah’s follow up emails requesting the information.

The response time with FOIPP can vary enormously.  For example, a recent request sent to Communities, Land and Environment came back with all the documents requested in two weeks, while another to Executive Council requesting copies of advertisements purchased with tax-payers dollars hasn’t moved forward since July 10, as we negotiate the scope of the request and the fees they are charging us.  Yet even, as unpredictable as it may be, at least with FOIPP we know that we will eventually receive some documents.

In spite of our 20 page report with 21 recommendations, I am convinced that the easiest and simplest way to improve FOIPP is for government to stop wasting my time, my staff’s time and the resources of their own Access and Privacy Services Office (who incidentally are always extremely helpful and professional), by just doing the right thing and openly responding to legitimate requests for information and documents without being forced to release the records under FOIPP.