The Mystery of Sooke’s Transitory UDI Communications Continues – Reveals Failure of the BC Freedom of Information System to Provide Transparency Around Lobbying

The Mystery of Sooke’s Transitory UDI Communications Continues – Reveals Failure of the BC Freedom of Information System to Provide Transparency Around Lobbying

By Sasha Izard
Dec 11, 2024

In a previous article, I showed how the District of Sooke may very well have destroyed a significant amount of material regarding its communications with the Urban Development Institute (UDI) a registered organization on the BC Lobbyists Registry.

In March of 2024, I had sent the District of Sooke, which is a paying member of the UDI (although in a process to potentially withdraw soon), an FOI request for the following:

“All communications from Sooke with and regarding the Urban Development Institute (UDI) over the last 3 years. Also any documented information about any meetings with the UDI during that time.”

I received 43 pages of information, quite a contrast to the District of Saanich, which even after leaving the UDI had continued to receive a barrage of communications/material from the UDI.

In contrast, in a similar FOI request to Saanich, I received more pages than Tolstoy’s War and Peace.

I sent an email to Sooke FOI asking:

“Thank you.

Is that all the communications over the last 3 years?“

The response from Sooke was:

“These are all the District’s communication records from the past three years. Please note that many email communications are considered transitory and are not required to be retained by staff if they do not document a specific business decision. However, at the time of an FOI request, we gather all records in the custody of staff, whether official or transitory.“

Although that statement is particularly vague, (perhaps intentionally so?) the way I read it personally is that potentially many, if not the majority of communications by Sooke with and/or regarding the UDI, may have been deleted and/or destroyed.

With District councillors confused as to the nature of the UDI’s lobbying activities, despite the District being a paying member of it, Sooke’s lack of record retention in regarding its communications with the lobbying organization seemed to reveal critical blind spots, if not negligence in governance.

Seeing what I considered to be a suspiciously bare bones FOI response, and dubious rationale behind the sparse results, when I know full well the sort of volume the UDI sends to its members, and even some non-members, I submitted an adequate search request regarding the Sooke FOI to the BC Office of the Information and Privacy Commissioner (OIPC).

On December 6, As Christmas was approaching, I finally received a response albeit a rather abrupt one to the request:

“Good morning,

Attached is my finding letter for the above-noted adequate search complaint. This file is now closed.

Sincerely,”

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As seemingly out of the blue the door opened, so practically immediately it shut again, without offering me even the opportunity to ask a question of the response.

Pardon if I sound a bit cynical, but it doesn’t sound like the OIPC really wanted to investigate this at all. Perhaps it’s because I have had far too much experience in dealing with them, and know from experience how they seem to be there simply to play defense and try to end the conversation as abruptly as possible, rather than actually representing the public interest and providing transparency and accountability in regard to government in a so-called democratic society.

I plodded on indefatigably as usual, and opened the document:

The following quote is from the OIPC investigator assigned to my adequate search request to Sooke:

I have considered the details provided and I find that the public body made reasonable efforts in conducting their searches for responsive records.”

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Feeling another bout of of déjà vu coming on, I responded.

Hello,

I am having difficulty understanding this following paragraph in the letter:

“Regardless of the District’s view that much of the requested information is transitory (such as any communications from the District with and regarding the UDI, and information about meetings with the UDI), the District located a limited amount of records that were responsive to your request. These were provided to you on May 15, 2024.”

Are you saying that the District has more communications from the District regarding the UDI, and information about meetings with the UDI, and that they did not include a certain amount of that in the FOI, on the basis that they are transitory?

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The investigator responded:

No, I am saying that the District performed a search on the transitory records that they still had in their repository at the time of the request. These were provided to the applicant in the records package sent on May 15, 2024.

Thanks,

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I responded:

So I received all the transitory records that were relevant to my FOI request?

Thank you,

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They replied (I bolded the text):

Hi,

That’s correct; the public body advised that they sent whatever transitory records they still had that were responsive to the request. Other records may have existed but were deleted or not kept by employees. Sorry for the confusion.

Let me know if you have any other questions.

Thanks,

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I responded:

Hi,

Thank you.

4 questions.

1. Is it possible for the OIPC to find deleted records including deleted email communications by government employees?

2. Is it possible for the OIPC to find meta-data regarding record/email deletions including the time of deletion?

3. Is there any retention policy for local governments to keep such records, including copies of email communications by local government employees for a certain amount of time?

4. Are there any retention requirements for local governments to keep such records, including those that are transitory; and including copies of email communications by local government employees for a certain amount of time?

Thank you again,

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They replied (I bolded the text):

Hi,

Thanks for your email.

With respect to the first two questions, the OIPC does not conduct a search for the records of other public bodies. The public bodies must conduct their own search. As such, I believe the District would be best suited to respond as they can gather that information from their IT team.

Regarding questions 3 and 4, public bodies and organizations typically decide on their own document retention policies. The only retention requirement under FIPPA is that public bodies/local governments must retain records containing personal information for a minimum of one year (section 31 of FIPPA). This is only in relation to personal information (information about an identifiable individual).

Sincerely,

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I responded:

“With respect to the first two questions, the OIPC does not conduct a search for the records of other public bodies. The public bodies must conduct their own search. As such, I believe the District would be best suited to respond as they can gather that information from their IT team.”

If the OIPC does not conduct a search for the records of other public bodies, how then can the OIPC during an adequate records search, determine if an adequate search was made by such bodies?

Thank you again,

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Seeing my to-the-point question, and apparently not wanting to answer it, they adopted the common practice of simply ending the conversation as fast as possible:

Hi,

In order for a search to be considered adequate, it must include efforts that a fair and rational person would find acceptable. The public body has provided me with an explanation of their search efforts in each of the program areas that could possibly retain responsive records, and provided an explanation for why additional records weren’t located.

If you have concerns about the investigation, particularly for the reasons listed, you can submit a request for reconsideration to info@oipc.bc.ca. One of the following will be decided:

a. Confirm all or part of the findings of the Investigator;

b. Direct further investigation by an Investigator on all or part of the issues raised;

c. Determine that no further action should be taken with respect to all or part of the complaint if further action would not serve the interest of a just determination of the issues raised in the complaint;

d. Refer the matter to a hearing.

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I responded, full well expecting no response:

Is that what the OIPC does then for an adequate search request, they simply accept the public institution’s claim that they did an adequate search at face value, instead of the OIPC actually searching the public institution’s records to see if that is actually the case?

Thank you again,

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Taking up the offer of having the adequate search request reviewed by those higher up in the OIPC, I sent the following email to the OIPC:

Hello OIPC,

I am forwarding to you the email chain of this so-called adequate search investigation, so that you can determine if the adequate search itself was an adequate search.

The conclusions will be quite revealing of how the OIPC really operates.

I am officially sending you a request for reconsideration of this file.

Thank you,
Sasha Izard

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Conclusion:

Upon my latest inquiry into the absurdities of search-based recursiveness, the OIPC quickly acknowledged this most recent re-request, and so it will be interesting to see how it responds to this.

Is the OIPC yet another a fake watchdog? If an adequate search request, simply involves the OIPC echoing what the FOI officer from a public institution already stated, without any real critical inquiry on behalf of the OIPC, then I believe it is.

Or, will the OIPC redeem itself and show that it is not really there simply to pretend that they are there to uphold the public interest in regard to keeping government and even their own investigators accountable and transparent?

Are lobbying communications to government merely “transitory” documents that can be discarded at a local government’s whim, or something to be mass jettisoned whenever it feels itself in potentially hot water as the result of its own actions?

The nature of ‘transitory’ communications has been the subject of scrutiny in the past in the nearby City of Victoria. Just do a google search on “triple deleted emails” to see this to be a major issue at all levels of government.

The lack of mandatory lobbyist registries at the local government level already speaks volumes to the issue of a complete lack of transparency regarding lobbying at the local government level, and a gross level of double standard in law, and hypocrisy from the Province; which for itself mandates lobbyist registrations, but not for local governments.

Also, what seems to be a complete lack of record retention requirements in FIPPA, makes it look like just another government regulatory tiger wearing false teeth.

“The only retention requirement under FIPPA is that public bodies/local governments must retain records containing personal information for a minimum of one year (section 31 of FIPPA).“

“This is only in relation to personal information (information about an identifiable individual).“

To myself, the exchange of communications revealed in this article, demonstrates and confirms a repeated finding from not only my experience, but from the experience of others as well:

The Freedom of Information system in BC, has nothing to do with freedom of information at all. Information for the public is often very expensive, and the real intent behind the system seems to be freedom from information for the public and freedom from democratic scrutiny for politicians and the lobbyists they work with far from the prying eyes of the public, which the government is at least in theory there to represent.

As for the media, they really have nothing to fear, they too are yet another tiger wearing false teeth. On the rare occasion the media do take serious issue with government incompetence and dubious activity, the FOI system will still be there to slow the media cycle down, so that the public can be neutralized going about their lives unshaken, having received their latest government-operated neuralyzer.

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