“THE TIM WITTENBERG CASE” --
The Ministry of the Agriculture, Food and Fisheries breaches the Freedom of Information and Privacy Act: OIPC File #17371

Tim Wittenberg made an in-person submission to the FOI Review Committee on January 21st when it was in Vancouver. He noted that in March 2003 I had submitted a complaint on his behalf to the Freedom of Information and Privacy Commissioner’s Office. The complaint? The Ministry had copied the BC SPCA with its response to Mr. Wittenberg’s complaint about the Society, thereby revealing his personal information to then-President Michael Steven of the BC SPCA. On May 8, 2003 the Commissioner’s clerk Ms. Francis “in (her) view” found: “no authority in s.33 of the Freedom of Information and Privacy Act (‘Act’) for the Ministry to provide the BCSPCA with a copy of its outgoing correspondence. I therefore find that your complaint, on Mr. Wittenberg’s behalf, is substantiated.”

Mr. Wittenberg’s primary concern, since he is already publicly part of a lobby to implore reform from the BC SPCA, was for others, potentially including SPCA staff, volunteers and/or members whose private information and concerns could have been likewise revealed to the BC SPCA board of directors.

In a May 20, 2003 letter of response to Ms. Francis’ May 8th findings and as part of closing Mr. Wittenberg’s file, we expressed our impressions of and outstanding concerns about the Ministry. The italics below are direct quotes from that correspondence:

1) “Mr Smith said that the Ministry of Agricultue, Food and Fisheries, the Ministry of the Attorney General and the Premier have all received a large volume of correspondence on the BCSPCA over the last 8-10 months and that the Ministry has been tasked with responding to this correspondence.”

2) “Mr Smith said he was told that, given the volume of correspondence in this case, it is not possible to determine whether other responses the Ministry sent out were also copied to the BCSPCA without ‘considerable research.’”

The government has received a “large volume” of correspondence about the BC SPCA but it failed to answer the question of whether it had sent the society similar copies of Ministry correspondence to/from others. The Ministry seems disinterested in knowing whether it protected its constituents and the public interest prior to Tim’s complaint. That is disappointing for us.

Tim’s reaction after some thought about your letter was to suggest that he or I should post a summary of your findings on an Internet message board so others who have complained to government about the SPCA could submit their correspondence to that website. Tim hopes that group, of which he is a part, can determine whether the Ministry contravened the Act in other cases. I recommended against any postings until his OIPC file is closed.

As Tim’s advocate in this case, what most bothers me is that he seems to feel more responsibility to determine the Ministry’s record than it seems to. The government seems to have, perhaps inadvertently, set him up to feel as though he must fulfill a sizable public service role to identify and fix something for others -- if it occurred in cases other than his during the past 8-10 months. Tim knows the government is best equipped and most obliged to answer the question of whether it has infringed others’ rights under the FOI Act. Yet, he continues to worry about others whom the Ministry may have hurt and who may not have known their cause for complaint under the Act. Some SPCA employees have been dismissed during the past year, and he wonders if any complained about the SPCA to the government and if so whether that may have played a role in their dismissal. He intends to share his story and ask on his group’s website once his file is closed.

Before you decided his case, Tim allowed his complaint to be mentioned and used as part of a Bill Good Show request for review of a Ministry decision, which was filed just prior to your decision being rendered (OIPC file #17606). In the appeal for that review, the Show has argued, primarily, that there is a clear and significant public interest and benefit in knowing more about the relationship between the government and the BC SPCA. I believe the Ministry has gone a long way in supporting that argument with its own information and/or actions.

It has contravened the FOI Act under section 33, as you found. It failed to answer the question about its prior practices, which is indicative of similar frustrations that Tim and others like him have faced when asking other questions about it and/or the SPCA, or both. It said it has received a “large volume” of correspondence on the subject, which suggests the public has remained interested in getting answers from the government for a sustained period. As well it has rationalized its failure to answer the question by saying it would take “considerable research” to determine whether the Ministry has contravened section 33 of the FOI Act with other individuals. Basically, the Ministry could, with some effort on its part, answer a question all of us have asked but it chose not to. Since the Ministry infringed on Tim’s rights it would have been compensatory for Mr. Smith to insist the Ministry answer all of Tim’s questions rather than leave him with outstanding concerns for his associates. What is expedient for the Ministry occurs at Tim’s expense in peace of mind.

When Tim suggested that we post something on the Internet, I reminded him that there is still potential for the question about the Ministry’s procedures with others’ previous correspondence to be answered by fulfillment of The Bill Good Show’s FOI request. I reassured him that I would promptly share all information with him in that event. Rather than press the issue now with the Ministry through you and this file, he is content to trust another independent OIPC’s process, to wait for a possible answer, and to close this case so he can tell his friends about his experience.

Tim feels rewarded by knowing he has helped to protect others in future, but his concerns and outstanding questions about the Ministry and its relationship with the SPCA remain. By not answering a key question that it could answer, the Ministry still seems more willing to protect its and the SPCA’s interests than the public interest and the individuals who expect and trust it to do right by them. We appreciate the opportunity to express our concerns while closing this file and hope they will be considered as context for and part of the Bill Good Show file.

THE MAFF’s RECORDS HAVE ARRIVED:

Barriers everywhere. So frustrating. Not even a breach of the Freedom of Information and Privacy Act by the Ministry of Agriculture, Food and Fisheries could compel it to review how it had dealt with complaints about the BC SPCA. Nor would the Ministry reasonably pry its knuckles from the public complaints during the Bill Good Show’s negotiation process: there were simply too many complaints to retrieve at what I estimate as a cost of around $1500 or more, given the total original quote by the Ministry. So the Ministry through Ms. Francis offered a cheaper, “barebones” report, one simply saying a complaint was made, nothing material about the nature of the complaint. In my view, as CKNW’s point person, this amounted to a choice between paying something for nothing or paying outlandishly for what I believe a responsible government should already have been doing given the “large volume” of complaints to the Ministry and the potential compensatory value to Mr. Wittenberg and others who may have had the same rights infringed upon.

Essentially, the Ministry was not doing a good job, found out it wasn’t with the Wittenberg case, refused to clean up the existing mess it may have made while promising not to make another mess in future. It would not waive retrieval fees for complaints when the Bill Good Show requested that and urged the Show through our clerk to remove complaints from the request and instead it offered a useless report for a fee.

I found no reasonable access to the records of complaints made to the Ministry of Agriculture, Food and Fisheries about the BC SPCA. I found then and still find this unacceptable.

Our request for records generally included all items of correspondence or record between the BC SPCA and Ministry, between the BC Veterinary Medical Association and the Ministry about the BC SPCA, and between the public and Ministry between the years of 1997 to present. The request was made in early February 2003. After receiving an original estimate of nearly $2000 for those records, then being delivered only five documents capturing only seven pages during a six or seven year period, along with the Ministry’s reluctance to review and retrieve its own complaint/response records, I can draw no other conclusion than that the Ministry was never acting in good faith or the public interest during the 11-month process. Our negotiations resulted in a fee of about $190. Rather than being a legitimate estimate of a fee for available records it seems a ruse designed to frustrate the Bill Good Show out of the process completely.

The money is summarily returned to CKNW and the processes are for naught.