If a disaster strikes in the forest, the question is not does it make a sound, but does the government have a legal duty to tell someone?
The question of when the BC government is required to disclose information about health, environmental and other public interest issues is the subject of an important report issued earlier this week by Elizabeth Denham, BC’s Information and Privacy Commissioner. Commissioner Denham’s report is noteworthy for those who want access to important environmental information, and makes some good recommendations. However, while we agree with her recommendations, Denham missed a valuable opportunity to clarify the obligation of government to disclose information where the public interest demands it; instead she passed the buck on that issue to the BC government.
A press release from Denham’s office explains the focus of her report:
“Public bodies are the stewards of large volumes of information about our health, safety, environment, and other matters of public concern,” said Commissioner Elizabeth Denham. “It is their duty under section 25 of the Freedom of Information and Protection of Privacy Act to warn the public of significant harm, and also inform citizens of matters in the public interest.
“What is clear from this investigation is that legal reform is needed to ensure that a public body’s responsibilities under section 25 are properly discharged to the benefit of the public.”
Section 25 of the Freedom of Information and Privacy Act places an important obligation on government to disclose information that relates to public health, the environment and other issues of public concern.
Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information … about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or … the disclosure of which is, for any other reason, clearly in the public interest.
This section of the Act is important in that it requires the release of information even when no one has requested it (perhaps because no one outside government is aware of its existence), and it trumps the various other limits on the disclosure of information. We used the provision recently (successfully) in a letter demanding the release of water testing data after the Lemon Creek jet fuel spill.
Denham had been asked by the BC Freedom of Information and Privacy Association, and the UVic Environmental Law Centre (ELC), to investigate whether the BC government has complied with its legal obligations to release environmental and public health information under section 25. Denham looked at 5 of the case studies identified by the ELC and concluded that in one of them – concerning the notorious Testalinden dam, near Oliver, BC, which failed in June 2010 – the Ministry had clear information about public safety risks that it should have disclosed. Incredibly, as Les Leyne of the Times Colonist reports, the Ministry responsible for dam safety is still is of the view that it had no obligation to notify residents of the area of the safety risks posed by the dam.
Denham also surveyed a number of government agencies and found that they did not understand their responsibilities under section 25:
The results of the survey were that the public bodies clearly did not fully understand their obligations under s. 25. Only three respondents have policies that explicitly reference those obligations. Only one has considered specifically the requirement to disclose information under s. 25(1)(b), when the disclosure is clearly in the public interest.
Denham makes three recommendations in her report; it is the third recommendation that we have questions about:
- RECOMMENDATION 1 - Public bodies should develop policies that provide guidance to employees and officers about the public body’s obligations under s. 25 of FIPPA.
- RECOMMENDATION 2 - Public bodies should ensure that its employees and officers understand the public body’s obligations under s. 25 of FIPPA and are provided with adequate training to ensure compliance with these obligations.
- RECOMMENDATION 3 - Government should amend s. 25(1)(b) of FIPPA to remove the requirement of temporal urgency so that there is a mandatory obligation for public bodies to disclose all information that is clearly in the public interest to disclose.
Recommendation 3 and “Urgency”
The thing that’s rather peculiar about the third recommendation is that s. 25 doesn’t mention “temporal urgency”. That requirement comes not from section 25(1)(b), but from the interpretation of the section by the previous Information and Privacy Commissioners. Denham is essentially recommending that the government pass a new law to reverse decisions of her office.
Denham acknowledges this to a certain extent, explaining:
Previous Orders of this office have interpreted the phrase “without delay” in s. 25(1) as requiring an “element of temporal urgency” such that neither ss. 25(1)(a) or (b) is triggered unless there is an urgent and compelling need for disclosure. The circumstances must be of clear gravity and present significance which compels the need for disclosure without delay. This sets a very high legal threshold before public bodies are required to disclose information under this section.
But Denham, as an administrative decision-maker, is not bound by the rulings of her predecessors, and the question of the correct interpretation of that report has never been considered in the courts. So there was nothing stopping her from clarifying that section 25 would be interpreted differently in future. Indeed, she explains why a different interpretation of section 25 only makes sense, but still takes the past interpretation as locked in stone.
The “public interest” under s. 25(1)(b) contemplates the disclosure of a wider scope of information than is canvassed in s. 25(1)(a). However, because of the temporal urgency requirement attached to the public interest disclosure, it has effectively been limited to cover the same circumstances in s. 25(1)(a).
There is nothing stopping the Commissioner from ruling that “without delay” refers to the time period in which a public body must disclose information once it becomes clear that it is in the public interest to do so. Denham could then develop rules related to when the public interest exception applies. Instead, she passes the buck to the province, to undo a problem that her office created.
What does the current interpretation require?
Despite the fact that she refuses to re-open the interpretation of section 25(1)(b), the report gives us a bit of insight into how the current interpretation works – and I have to say that she takes it a bit more narrowly than I think she should.
Of the 5 case studies she examines, there is only one (the Testalinden Dam case study) that she finds did give rise to a requirement to release information under s. 25, and it is one in which physical harm actually occurred. Hindsight is always 20-20.
On the other case studies she is quite deferential to government’s justification for not releasing the information. The most surprising example of this, for me, is the example of water test data from 2 wells in the Cowichan Valley that were found to be contaminated with nitrates. In explaining why this information did not have to be disclosed to nearby residents, Denham writes:
Neither of the wells with elevated nitrates was a public well nor a source of potable water. Also, there is no evidence these wells contaminated Aquifer 197.
The test results did not reveal a significant risk of harm to the environment or to public safety and therefore did not meet the high threshold necessary to trigger s. 25(1)(a). Similarly, as there was no indication of aquifer contamination, the public interest test for disclosure under s. 25(1)(b) is not met.
I do not know what information was before Commissioner Denham about this contamination, but she seems confused in this analysis. The wells in question were not a source of contamination, but draw their water from Aquifer 197. So if they have become contaminated, apparently due to the operations of nearby industrial operations, it is because of at least some level of localized contamination of the aquifer. This is explained in a recent Engineer’s report on the contamination:
Nitrates in the groundwater in the industrial supply well at 1355 Fisher Road have been known to be elevated since at least 2002 … The primary potential sources of groundwater nitrate contamination identified by the report included current and historical site activities at: 1) the composting operations at 1345 Fisher Road, 2) the composting operations at 1355 Fisher Road and 3) greenhouse operations at 1360 Fisher Road and 1375 Fairfield Road. Other studies conducted in 2011 measured the local groundwater flow direction as being towards the north-northwest with an estimated velocity of 55 m per year. … The findings to date suggest that a minimum of two plumes of nitrate-contaminated groundwater are present within the upper part of the aquifer underlying the Fisher Road area. … Additional investigations will be required to determine the full extent of the observed groundwater contamination …
On what basis does Denham feel that contamination detected in a well does not indicate a risk to the environment? Isn’t contamination of even a portion of the aquifer itself already evidence of actual harm to the environment, even if it is not currently used for drinking water? The aquifer is, one would think, part of the environment.
Denham’s approach seems to suggest that there must be a fairly high level of evidence of what she calls a “real and probable risk of a significant health or safety harm”, and evidence suggesting that such a risk may exist is not enough. According to her interpretation, where there is uncertainty about the health or environmental impacts, then the government can sit on the information until new information clarifies the issue one way or the other, even where the government agency is investigating the potential risk further. This deprives people who might want to make their own assessments about the risks that they are exposed to of important information.
Finally, localized aquifer contamination will typically move slowly to other parts – particularly if the causes of the contamination remain unaddressed. So while there might arguably be no “urgency” – in the sense of an immediate public health hazard – there is a significant likelihood that the contamination being detected today will one day impact other well users, and could pose health impacts (at which point the only remedy for the well users may be to find a new source of water).
Denham doesn’t explicitly say that “temporal urgency” cannot relate to a slow moving disaster, such as eventual migration of contamination to other wells or (to pick another example) the expected impacts of climate change and a failure to prepare for it. The term “temporal urgency” comes from a 2002 OIPC decision, which used the term once, and accepted that general scientific information about the risks of smoking (which may not show up for years) could be caught by s. 25(1)(a):
If the information the public bodies have refused to disclose revealed or explained, in a scientific or medical sense, the existence or gravity of that risk or associated risks, or means of mitigating those risks, then disclosure under s. 25(1)(a) could well be required.
But the term itself suggests a more immediate risk, and Denham’s discussion and application of the term does not highlight the possibility of a more forward-looking application.
Clearly further discussion about what is meant by immediate disclosure of information about “a risk of significant harm to the environment or to the health or safety of the public” is required.
Commissioner Elizabeth Denham does deserve credit for examining the issue of section 25 of the Freedom of Information and Privacy Act – a requirement that is key to our environment’s health and public safety. The insight that BC government agencies have not been applying this section is a crucial one. However, while we agree broadly with her recommendations, Commissioner Denham could have taken the opportunity to signal a departure from earlier decisions of her office on the scope of section 25 and to clarify how the section should be applied. Unfortunately, some of the specifics of her approach seem overly narrow, and we hope that she will revisit them in future decisions.
By Andrew Gage, Staff Lawyer
Freedom of information logo is part of the public domain, having been developed by the U.S. government.