Use FOI tools to make your government more accountable: Investigative journalist Bob Mackin reveals his secrets

City Hall FOI(Updated) On November 19, 2015 contributors and readers of CityHallWatch met in Vancouver with investigative reporter Bob Mackin to hear about his experience filing freedom of information (FOI) requests with the municipal and provincial governments under FOI legislation. This topic is particularly timely as the City of Vancouver is undergoing a provincial audit of its FOI practices, and City Council is set to change Vancouver’s own FOI bylaw (with serious negative implications  — see The Province.)

Below is a summary of his presentation, with points that are probably relevant at every level of government, everywhere. (New material added at bottom: A concrete example (“the Viaducts”) of how the FOI office already appears to be manipulated for political gain or self-preservation on a crucial project worth hundreds of millions of dollars, affecting the very design of the city.)

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Bob Mackin asserts that it is becoming increasingly difficult to obtain information from those in power. As a result, FOI requests have gone from being a last resort, to the only way to get a straight answer. This lack of transparency is weakening our society’s ability to hold governments accountable and puts in to question the integrity of our democracy.
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The sophisticated corporate communications tools and techniques employed by governments can make acquiring information a daunting task. Mackin recommends staying persistent and offers several tips to get the information you are looking for:

  • Get to know the public body. Read annual reports and directories; identify the important players, and review the lists of salaries and contractors. Read their tender documents—a lot can be learned from what they buy—and court registries to see if they are suing or being sued.
  • Make contact. Follow up on requests by phone and leave a message or initiate a friendly conversation. Making personal contact with the FOI office can allow you to gauge the mood of the public body, and FOI clerks may offer you hints to quicken the process.
  • Don’t accept requests to pay a fee right away. Although governments are allowed to charge for finding and producing a record, there are ways to have this fee waived. The fee can often be waived if you can prove that the subject of the record is a matter of public debate, about the environment, public health or safety, or that it can help increase public understanding about a policy, a program or law. Proof of inability to pay can also suffice.
  • Make note of deadlines. Public bodies often fail to produce responses in time to meet their legislated deadlines, and require a reminder. Sometimes the excuses may seem legitimate. But do not hesitate to negotiate a new deadline that you find reasonable.
  • Look closely at what has been included and left out. If you are not given an explanation for a redaction, call the FOI clerk and ask for one. Redactions are made for various reasons but sometimes the personnel make mistakes. If you have a serious concern about a redaction, you can file another FOI request for the internal paper trail surrounding the initial request. Otherwise, complaints can be emailed to the Office of the Information and Privacy Commissioner (OIPC) with the original request and the public body’s response attached. It is important to remember that the onus is on the public body to justify any redacted documents.

Mackin recalls several “wins” against the City of Vancouver’s attempts to hide information. During Penny Ballem’s time as City Manager until late 2015, for example, it was especially difficult to access even basic information on the municipal government’s tendering and procurement. The City kept information from the public regarding who the City was doing business with, how it was deciding contracts, and who was being shortlisted for contracts. One of his “wins” was in a request for the engineering reports of the Burrard Street Bridge. The City cited five sections of the B.C Freedom of Information and Protection of Privacy Act in order to keep the information away from the public. Mackin brought this to the OIPC, whose adjudication struck down all five, including one stating that if the state of the bridge was made public, it could be the target of terrorism. The City did not submit a police report to validate its position.

Before the November 2014 civic election, Mackin had also requested the engineering reports for the Georgia and Dunsmuir viaducts, which were being considered for an enormous project of demolition and redevelopment. He received the reports, albeit heavily redacted and missing many pages. Again, he filed a complaint with the OIPC. Eventually, the City gave him the full report, two weeks after the election. They showed the viaducts to be in good condition. This is problematic because it kept information away from the public that could have been relevant during the election, and could have enhanced the public debate surrounding this important piece of infrastructure and potentially enormous costs to public finances.

Mackin also urges citizens to use social media, get involved with civil society groups, and talk/tweet more about these types of issues, in order to encourage governments to respond better to the public’s demand for information.

Use the #GreyestCity hashtag to spread the word.

CityHallWatch thanks Bob Mackin for sharing his experience and tips, and Devon Harlos for writing this summary.

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From his website:  BobMackin.ca is the production of Bob Mackin, a multimedia journalist in Vancouver, British Columbia, Canada, whose work has appeared in a variety of outlets, from the North Shore News to The New York Times. Bob contributed The Investigators documentaries to CKNW AM 980 and is a regular guest on The Sport Market on Team 1040. He covered the Turin 2006, Beijing 2008, Vancouver 2010 and London 2012 Olympics. He is the author of several books, including Red Mittens & Red Ink: The Vancouver Olympics.

Follow Bob on Twitter @bobmackin. Confidential story tips and documents are welcomed. Send email to bob@bobmackin.ca.

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The Vancouver Viaducts – a case study.

CoV confirms FOI Georgia Viaducts query, Bob Mackin, 2013

 

DEPICTED ABOVE: Part of the official acknowledgement of Mr. Mackin 11-Oct-2013 FOI request specifically on the Vancouver viaducts more than a year before the November 2014 civic election.

The City’s FOI office waited until after that election to release the documents to him.

There is probably no other explanation for the FOI office’s delay than political interference. Major political donors of Vision Vancouver include Aquilini and Concord Pacific, which stand to gain hundreds of millions of dollars in profit in developments after the removal of the Viaducts, while taxpayers are likely to foot the bill of hundreds of millions for their removal.

Vision Vancouver was a strong proponent of removing the Viaducts. In the 2014 election, the civic party almost lost its Council majority, with their lowest vote-getters winning a seat only by several hundred votes over their opponents.

Information finally released after the 2014 election included an expert a 2009 report by Associated Engineering, commissioned by City of Vancouver, estimating that the Georgia and Dunsmuir viaducts could last until 2024 without major rehabilitation and pegging the cost of replacement at less than $100 million.

The city originally withheld information about the viaducts, claiming exemptions for policy advice, protection of city finances and third-party trade secrets and fear of harm to law enforcement and public security. It relented almost three months after an adjudicator ordered full disclosure in September 2014 of Burrard Bridge engineering reports, in a ruling that said the city’s claim the bridge would be at risk of a terrorist attack was mere speculation. (Source: Newly revealed viaducts report says replacement cheaper than demolition, by Bob Mackin, Vancouver Courier, September 23, 2015.)

Question: Did political interference in the FOI office delay the release of FOI documents, protect the political party from challenging debate during a civic election, result in enormous potential profits for specific companies, and at a cost to taxpayers of millions of dollars? What would have happened if the media received the information 30 days after the October 2013 request.

Finally, will the proposed changes to Vancouver’s FOI Bylaw strengthen the public interest, or conversely, consolidate and centralize political control of the FOI office even more?

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