The B.C. Liberals would appear to have pulled out all the stops in a failed effort to prevent public disclosure of documentation related to those mysterious firings in the Ministry of Health two years ago.
Details came to light this week when the information and privacy commissioner ruled against the government and rejected most of its arguments as unfounded, speculative and even perverse.
Victory in the lengthy proceeding goes to the tireless folks at the B.C. Freedom of Information and Privacy Association (FIPA), particularly executive director Vincent Gogolek, who filed the request for the material back in 2012.
Sought were agreements, correspondence, memos and other documentation for the 18-month period leading up to the firings. After some back and forth, the health ministry opted to withhold some 200 pages of agreements, contracts and emails, which led the association to take its case to the commission.
In defending its refusal, the health ministry advised the commission that the withheld material was central to ongoing investigations into the affair, one by the comptroller general, the other by the RCMP.
The senior investigator for the comptroller general's investigation testified to that effect by affidavit and provided further evidence in camera, thereby underscoring the supposedly sensitive nature of the material in question.
Disclosure could tip off possible witnesses about the direction of the investigation or even alert suspects that they might be under investigation, the ministry argued. Thus forewarned, they might alter their testimony, destroy evidence or otherwise "thwart the investigation."
Not likely, replied FIPA in countering the government: "In September 2012 the minister of health publicly revealed information about the investigations and the termination or suspension of a number of individuals and the cutting-off of data access to others, so if individuals were inclined to undermine the investigation by destroying evidence or altering their testimony, they would have done so by now."
Nor was the commissioner's office impressed by the government's argument. The comptroller general does not actually lay criminal charges, noted adjudicator Elizabeth Barker in siding with the application for release.
"Although the senior investigator for the office of the comptroller general states that the police often request access to records that the OCG has compiled during the course of investigations," she continued, "there is no evidence that the actual records at issue here form part of a police investigation."
She wasn't swayed by the in-camera evidence either: "In my view, it indicates that the RCMP does not actually know what the records are. Therefore, I am not persuaded that the information in dispute actually forms part of any RCMP investigation."
Barker was contemptuous of the health ministry's claim that release of the information might compromise the investigation regarding individuals, be they witnesses or persons of interest.
"The ministry does not explain the significance of the withheld information to any particular individual and why knowing that information might motivate that person to lie or attempt to thwart an investigation. In effect, I am required to guess in order to fill in the blanks. Even in the one instance where the ministry does identify an individual, it provides no information that explains why it would be reasonable to expect that person to destroy evidence or be purposely deceitful and uncooperative."
Hence her rejection of the ministry claim that release could harm law enforcement:
"In my view, the ministry's submissions are based on speculation, and there is no objective evidentiary basis for concluding that the harms the ministry fears will result from disclosure to the applicant."
She discounted other arguments as well.
"The ministry withheld a reference to two types of personal information that are contained in its computer systems. The ministry does not explain how revealing the fact that such information exists in its computer systems could reasonably be expected to harm those systems, especially given the fact that it is obvious any health-related system would contain that type of personal information."
She also caught the ministry withholding a key email on grounds of confidentiality when it had already disclosed the identical document elsewhere. "The ministry does not explain why it chose to disclose information in one instance but not in another," she observed. "Absent any logical explanation, in my view, it would be a perverse result to find that the ministry may refuse disclosure of this information."
Only on some matters regarding the personal privacy of some individuals named in the documents did Barker side with the government. And the prospect of the Liberals posing as a defender of personal privacy in this case must be somewhat sick-making to those whose lives and reputations were damaged by the botched firings.
All in all, the adjudicator issued an order that would see the ministry deliver the documentation to FIPA by Dec. 11. Executive director Gogolek pledges to then release the material to the public.
Instead of abiding by the ruling, the Liberals could ask a judge to overturn it. Which would be fully in keeping with their effort to keep as much of a lid as possible on this affair. Stay tuned.
