British Columbia·Analysis

Freedom of information laws a poor match for secretive governments, advocates say

Allegations that B.C. government staffers are deleting emails confirm suspicions of advocates who say freedom of information laws are proving a poor match for the cunning of secretive bureaucrats.

Advocates say lengthy delays, obfuscation and retroactive laws are defeating transparency

Federal Information Commissioner Suzanne Legault says the Access to Information Act is being used as a shield against transparency. (CBC)

The promise of a freedom of information request is tantalizing: ask your government a pointed question about what really happens behind closed doors — and then wait for a fat envelope full of headline-grabbing documents.

But the reality too often is an endless wait, countless challenges and — if you get any response at all — a package of blacked-out pages that wouldn't look out of place for a request about the design of a nuclear bomb.

University of King's College journalism instructor Fred Vallance-Jones says he has often suspected governments are trying to thwart the spirit of access to information laws.

But it's rare, as happened in B.C. this week, to see a former bureaucrat actually come forward to claim he was told to delete messages someone else might want to see.

"I think journalists and others who use these acts are pretty sure that these things go on," says Vallance-Jones.

"But a lot of time you can't prove that the reason you got a response of 'no records' wasn't because nothing existed, but because perhaps the records were destroyed."

'I was totally stunned'

The B.C. case highlights growing tensions at all levels of government: between transparency and secrecy; public relations and media manipulation; the people's right to know and an administration's desire to tell them.

The allegedly destroyed emails had to do with 18 women missing or murdered along B.C.'s so-called Highway of Tears. (Individual photos from

Tim Duncan told B.C.'s privacy commissioner that a ministerial assistant ordered him to delete emails in response to an information request at the provincial Ministry of Transportation.

The emails pertained to the so-called Highway of Tears, a stretch of road where 18 women have gone missing or been murdered since 1989. The ministry has come under attack for not providing adequate services.

"I was totally stunned," Duncan told CBC Radio host Stephen Quinn.

"To watch as the government doesn't take it seriously — a lot of staffers think it is a joke, and it is repulsive to me. It came to the point where I couldn't stay silent, so I decided to craft a letter."

Duncan's former supervisor has been suspended pending an investigation, and Premier Christy Clark says anyone who broke the rules should be punished.

'A shield against transparency'

But for years a string of both federal and provincial officials have called for changes.

B.C. Privacy Commissioner Elizabeth Denham has raised concerns about the timeliness of responses and an increase in cases where no record could be found in response to a request — no email, text or paper trail.

The Federal Court of Appeal recently chastised the Department of National Defence for telling someone it would take more than three years to respond to a request.

B.C. Privacy Commissioner Elizabeth Denham has expressed concerns about the number of information requests for which records could not be found. (CBC)

And federal Information Commissioner Suzanne Legault has warned against amendments to the Access to Information Act that would retroactively protect RCMP from prosecution for destroying long-gun registry records.

If anything, she argues, the act needs tougher penalties along with greater access.

"Access to information held by government is critical to the functioning of a modern democracy," Legault said in press conference in March.

"However, in reality, an act that was intended to shine a light on the decisions and operations of government has become a shield against transparency."

Stick to the message

Canadian politicians aren't the only ones seeking to elude scrutiny.

U.S. presidential candidate Hillary Clinton has come under fire for her use of personal email to conduct government business during her time as secretary of state.

And a survey of American federal executives found 16 per cent "always" or "often" use personal email to conduct government business.

Few do it as blatantly as the U.K. civil servant who wrote, "It feels wonderful to work free from fear of FOI!!" in a 2008 personal email to a business colleague.

All of which might be merely frustrating if it were not for the simultaneous growth of an industry of public relations officials inserting themselves between the people who actually make decisions and journalists who ask questions.

And not an unscripted word shall be heard.

"Only the approved statement is made," says Vallance-Jones.

"It only makes sense that your next step then is to try to cut off access to something better. To something more detailed. To something more damaging."

Truth will out

Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association, says game playing, delays and workarounds are nothing new to advocates.

But he believes that, if proven, Duncan's allegations may cross a line.

Vincent Gogolek, executive director of the B.C. Freedom of Information and Privacy Association, says destroying emails to avoid freedom of information requests should result in charges. (CBC)

"If someone is deleting emails with the knowledge that there's an FOI request, you can make a pretty good argument that there could be charges," he says.

Duncan claims a murder in his own family led him to empathize with families of the Highway of Tears victims: "I felt the need to speak out."

Frustration, it turns out, may be a more powerful tool for transparency than legislation.

Information has a way of coming out. Whether in brown envelopes or memory sticks.

You know how to reach me.


Jason Proctor


Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and the justice system extensively.