The NDP government wasted no time in implementing filing fees for Freedom of Information requests, as enabled by the revamped Freedom of Information and Protection of Privacy Amendment Act.

After dozens of hours at committee stage, the bill was one of four affected by the government’s closure motion last week and received third reading and royal assent on Thursday.

The new fee was in place by Monday morning. At $10, the filing fee is less than the $25 to $30 Citizens’ Services Minister Lisa Beare told reporters she recommended but is still the third highest of all Canadian jurisdictions. Only Alberta, which charges $25 per request, and Nunavut, which charges a raft of fees to produce documents, charge more.

“Indigenous governing entities” will not be subject to the new fee. The Union of BC Indian Chiefs described the NDP’s imposition of filing fees as “astounding ignorance and insensitivity,” noting that “legal processes of redress for historical losses require First Nations to make multiple formal requests for records from various public bodies in order to obtain evidence.”

Information and privacy commissioner Michael McEvoy told BC Today he continues to be “disappointed” with the government’s decision to charge British Columbians for access to information requests.

“It is likely to pose as a barrier to access to information and therefore will diminish the accountability of government,” McEvoy said.

The commissioner does not agree with the government’s claim that the legislative amendments “strengthen access to information.”

“The bill speaks to some issues about protecting people’s personal information and that’s positive, but on the access side, you’d be hard pressed to find much about the bill that improves matters,” he said.

Information and privacy commissioner Michael McEvoy told BC Today he continues to be “disappointed” with the government’s decision to charge British Columbians for access to information requests. (Photo: Twitter)

In fact, the NDP’s changes reduce the range of records accessible via FOI requests, including metadata linked to government records and deleted files.

“Metadata … can often trace drafts of records to know who did what at what point in time —  those are now no longer considered to be records that are subject to FOI,” McEvoy said. “There are also records that are deleted by public servants that can’t be retrieved by those public servants — those are considered now to not be records. [They] might still be in the archived system of government and may be something that may be relevant to an access request, but are now considered to be, in effect, out of bounds.”

There are “some positive” aspects of the new changes, per McEvoy, who cited mandatory notification of privacy breaches and new privacy management programs.

Many of the changes are being laid out via regulation with the government set to issue “guidance and directions” to affected public bodies. While the filing fee was posted via ministerial order, other regulations related to the legislation were not. A request to the citizens’ services ministry for information about all regulations already released was not answered by publication time.

“There have been regulations issued with respect to disclosure of personal information outside of Canada — the data residency issue,” McEvoy confirmed to BC Today. “The minister did not consult me about that nor about the guidance and her directions that flow from that. That is, I think, very disappointing.”

Communication breakdown

The privacy commissioner’s office has historically had “very good communication” with government on relevant matters, per McEvoy, who said his office is “able to provide expertise and … comments to government that often results in improvements” to policies and laws.

“It serves the public very well,” he said of the usual relationship. “In this case, that didn’t happen and that’s disappointing, and I can’t really explain why on this file that has not been the case.”

Going forward, the commissioner plans to “keep a very close eye” on the impact of the new fee structure with plans to review FOI filing statistics in six months or so.

Nova Scotia’s privacy commissioner concluded increased FOI filing and review fees “had a significant and negative impact on access to information” — in the year after the province jacked its fees from $5 to $25 per request, the volume of requests filed dropped by 27 per cent and review requests dropped by 40 per cent.

“We obviously are going to keep a close eye on matters related to data residency — on how public bodies are going to be using the new permissions granted under the act — to make sure that they’re keeping British Columbians’ personal information safe and secure,” McEvoy added.

Also on the commissioner’s radar are the new provisions that have yet to take effect — privacy breach notification and new privacy management programs — as well as how many other public bodies that handle FOI requests, including municipalities, health authorities, police departments and universities, decide to start charging filing fees.

“I would not be encouraging other public parties to be following the provincial government’s lead here,” McEvoy told BC Today. “We have a good system in British Columbia — it’s one that is accessible and promotes accountability. Those other public bodies will be making their own decisions … but I would certainly be encouraging them to keep British Columbia as fee-free as possible.”