Yes, Freedom of Information Is Broken. But Don’t Blame Workers Like Me

A common refrain in Canadian media is that the freedom of information, or FOI, regime countrywide is broken. I process FOI requests for public bodies, and people are right to be upset.

An audit published by the Office of the Information and Privacy Commissioner for B.C. in September found widespread problems with response times at the University of British Columbia.

A similar report from 2024 found the same problem across the B.C. government. Timelines are too long, redactions are too numerous — in short, access is too restricted. This erodes trust in public institutions and stifles democratic discourse.

However, while I agree there is a problem, I frequently disagree with its framing.

The problem is often portrayed as the result of malicious choices on behalf of government bureaucrats who seek to hide information from the public.

Reading any of the numerous pieces that have been written by journalists and advocates alike will paint a picture that has more in common with an episode of The X-Files than with the reality of public service.

Writing in his former role as a policy analyst for the Canadian Centre for Policy Alternatives in 2023 before he joined The Tyee as a forestry reporter, Ben Parfitt claimed “bureaucrats” go to great lengths to “deny — or at the very least delay — the release of basic information that members of the public are entitled to.”

In a 2024 opinion piece for Vancouver Is Awesome, B.C. director of the Canadian Taxpayers Federation Carson Binda posited that requests take so long because public servants are trying to make applicants give up.

Even B.C.’s information and privacy commissioner, Michael Harvey, told The Tyee earlier this year that public bodies delay their response times, including through third-party reviews.

Framing public servants as deviously denying access through any means necessary is inaccurate. The vast majority of these public servants want to do just that: serve the public. Many are professionals — such as librarians and archivists — who believe strongly in information access.

All who I have personally met over my 10 years of information access work understand their obligations under B.C.’s Freedom of Information and Protection of Privacy Act, or FIPPA, and work diligently to fulfil them.

The problem is not them, but rather the tools with which they do their work.

The greatest barrier is funding

The greatest barrier to public access to information is far more mundane than any of the above commentators suggest: funding.

FOI request numbers have steadily increased yearly, as have the scope of the requests. According to B.C. government annual reports, FOI requests per year rose from 5,394 in 2007-08 to a peak of 13,055 in 2020-21.

From there the numbers have declined as a result of the COVID-19 pandemic and the introduction of a mandatory application fee, which unfortunately dissuades people from making requests.

However, the average number of pages disclosed has steadily increased, rising from 223 in 2019-20 to 434 in 2023-24. This is just the average; requested pages can number in the thousands.

A similar story can be seen in Ontario, where the number of requests submitted increased from 14,281 to 27,238 from 2007 to 2023.

Despite these increases, the Globe and Mail reports that resources are a problem for FOI practitioners across the country. This is the real reason for the extensive delays in responding to requests.

FOI employees cannot simply work faster to process requests; if a public body receives more and larger requests each year without increases in staffing, the FOI office will quickly fall behind.

But delays in processing requests are not the only source of frustration for the public. Often, even when a requester gets access to records, they find that a great deal of information has been redacted.

Here in B.C., redactions to records are the result of what are called “exceptions to disclosure.” Exceptions are either “mandatory” or “discretionary,” and public bodies are meant to decide when to waive a discretionary exception. In practice this rarely happens, but that does not mean the redaction was made unlawfully.

A discretionary exception can be lawfully applied to mundane information, even if it could have been waived. Such decisions are the result of risk aversion on the part of public bodies. This is the truth behind the broken FOI system, at least in British Columbia; though it may often seem like government forces are conspiring to hide the truth, for the most part the problems are those that people deal with at every workplace — not enough money and a fear of risk.

Two fixes for improving access to information

This system, however, can and must be fixed. There are many changes that I think can be made to the law to improve public access to information in B.C. Here are two.

1. Legislative mandates for funding to FOI offices

FOI offices are often not considered core to the mission of a public body, but the public’s right to know is essential to the work of all public bodies. Adding a statutory requirement that a minimum percentage of a public body’s total budget be spent on FOI services will ensure resourcing is sufficient.

2. Amend widely used sections to be narrower, forcing additional disclosure

I recommend starting with sections 13 and 14 of FIPPA. Section 13 enables a public body to redact information that constitutes advice or recommendations made to the public body. The intention of the section is to enable public body employees to offer frank advice without concern for FOI, but its application is too broad. Amend the section so that it cannot be applied to advice or a recommendation that has been acted upon, and make the section expire entirely after five years. Presently, the section expires after 10 years.

Section 14 enables a public body to redact information that is subject to solicitor-client privilege. This section is discretionary but I have never personally seen it waived. Furthermore, this section never expires, putting information out of reach for even historians.

Solicitor-client privilege should expire five years after the conclusion of litigation or otherwise 50 years after creation. Solicitor-client privilege is intended to protect the client — the public body, but the public body represents the public. Legal advice contains some of the most illustrative details about how and why decisions were made. The public has a right to access this information.

If the above two changes are enacted, there would be big changes to FIPPA, but the broken FOI system cannot be fixed without such changes.

FIPPA’s next review period is in 2028; the time to start contacting your MLA is now.

*Story updated at 3:16 p.m. on Nov. 3 to correct misinterpretation of comments from information and privacy commissioner Michael Harvey.