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Les Leyne: Information complaints clog system

Want to complain to the information and privacy commissioner about how your requests for information are coming back blacked out, or how the emails you wanted were deleted, or how the response to your request is months late? Get in line.
Because of a backlog of files, it can take six months or more to get a response to a complaint filed with the office of information and privacy commissioner Elizabeth Denham.

Les Leyne mugshot genericWant to complain to the information and privacy commissioner about how your requests for information are coming back blacked out, or how the emails you wanted were deleted, or how the response to your request is months late?

Get in line.

As arguments continue in the legislature about whether Premier Christy Clark’s government is deliberately and routinely hiding or withholding information, the office that investigates such complaints started narrowing them down because they’re swamped. The changes were made because of a “significant increase in demand for our services.”

The commissioner’s office says there is a growing backlog of complaint and review files, which leads to a wait for services. The office has 300 files waiting to be assigned for investigation, and the average wait is six months or more. The backlog is blamed on a surge of complaints and appeals since 2012/13.

So a new system of triaging the workload kicked into effect Wednesday. It includes criteria that allow the office to decline to investigate if the complaint is frivolous, out of date or lacking information. If complainants haven’t given sufficient reason or not tried other means of resolving the complaint, the office will no longer take the cases.

Active investigations will be monitored to make sure they are in the public interest and will be discontinued if they aren’t.

A new limit of five complaints and five active inquiries per person is imposed, so high-volume complainants can’t swamp the office with cases while other individuals wait in line. The office said it wants to give fair and timely access, but it has become more challenging as the volume of complaints and requests for reviews has increased. A complainant with five active adjudications and five ongoing investigations will not be able to file more until the current cases are closed.

The office is also setting new benchmarks, timelines and performance measures to close files faster.

The office said the changes mean “we will be able to get to most files faster.” A small number of files might not be opened or might be discontinued.

But the independent association that monitors information and privacy law in B.C. said the bar is being set higher for people seeking recourse to the commissioner.

Michael Markwick, president of the B.C. Freedom of Information and Privacy Association, said the office’s resources are being eroded at the same time complaints are piling up.

The Opposition challenged Clark again Wednesday on the way searches for emails from or to senior officials in her office keep coming up empty. Anyone dissatisfied with that kind of response can ask the commissioner to investigate. It’s those kind of requests that create the backlog with which the office is trying to cope.

Markwick said the deleted emails reported by the commissioner last week are part of an escalating pattern.

“It’s not a case of ‘one bad apple.’ It’s systemic.”

With requests for emails to deputies, chiefs of staff and various other officials now all coming back with the standard “there are no records responsive to your request,” Markwick said it’s a government-wide escalating strategy.

“Premier Clark is going all Hillary Clinton,” he said, referring to the controversy that erupted over Clinton’s use of a private email address while secretary of state, and the deletion of 32,000 emails that she deemed private.

Commissioner Elizabeth Denham’s report last week found three offices, including the premier’s, were denying any emails on sensitive topics existed, when in some cases they were found by other means.

Markwick said in the U.S., Clinton had to explain herself to Congress. Under Canadian federal access-to-information law, violations can trigger fines or jail terms. But the B.C. law is toothless, he said.

Denham also reported last year on the number of “no responsive records” replies coming back to applicants. The percentage then had dropped slightly, but she remained concerned about the deletion of emails that officials considered transitory.

She has also repeatedly noted the trend toward an “oral culture” where sensitive information isn’t written down, or is quickly deleted. Three years ago, 45 per cent of FOI requests to the premier came back blank.