The Daum Report: Prepared for the Freedom of Information and Privacy Act Review Committee

THE DAUM REPORT: PART ONE: CONTEXT: Prepared for the Freedom of Information and Privacy Act Review Committee by Kimberly Daum

February 27, 2004

CONTEXT:
The BC Society for the Prevention of Cruelty to Animals (SPCA) is best known as a charity. But, it is also a business holding contracts and providing services for municipalities. And, it is a statutory law enforcement body that investigates animal cruelty complaints under the provincial Prevention of Cruelty to Animals Act. It is an enigma among societies, as it does not fall under the more demanding and democratic Society Act. The BC SPCA is for all intents and purposes a monopoly with a $20 million annual budget, a very sizable animal welfare “portfolio.” Of that between $2.5 and $4 million comes from municipal contracts under which the society provides animal control services. The remainder comes from “volunteer tax dollars” in the form of donations and legacies. By comparison, the Variety Club’s annual provincial budget is about $6.5 million.

That BC citizens donate so many funds to the SPCA indicates a substantial interest in animal welfare in BC. Yet, societies such as the Variety Club with lesser funds and even humble, little animal rescue, volunteer groups are governed under the more stringent Society Act, while its own exclusive PCA Act, which has few requirements by comparison, governs the wealthier SPCA.

The BC SPCA has run itself into a $10 million deficit and fiscal crisis during the past three years, which in my view is an unconscionable abuse of donors’ goodwill.

What the SPCA does and what the provincial government allows it to do affects provincial and civic taxpayers, municipal governments, communities and neighbourhoods, employees, donors, members, other animal groups and of course B.C.’s abandoned, homeless and/or abused animals, but we have no means to review how the SPCA carries out its operations. The SPCA itself is not subject to FOI search; therefore, the only direct access to its records is through the SPCA itself. My experience as a freelance journalist is that leaks, not SPCA releases, of information are the most common course by which important information and documentation, as opposed to rhetoric, gets from the society to the public. Asking for important information is a futile exercise.

Additionally, the SPCA does not fall under the auspices of the Ombudsman; complaints to the government about the SPCA have traditionally been met with one of two responses:

1) Government advice to take the complaint back to the SPCA, the very government sanctioned and authorized institution about which one is complaining, or

2) A defense of the SPCA’s 100-plus year record, regardless of whether the complaint is about the veracity of the SPCA’s record as stated in the media, its website, news releases or other publications.

The inconsistency in government oversight of BC charities compared to the BC SPCA is a key reason that the SPCA should fall under the provincial Freedom of Information and Privacy Act. If the government is incompetent, unwilling and/or unable to oversee the BC SPCA, the public must be allowed to.

PART TWO: GOVERNMENT’S POSITION ON THE FILE:
The BC SPCA is NOT just a private society; it is a provincial law enforcement body spending municipal and provincial tax dollars as well as donors' volunteer tax dollars. Many sources to my investigation of the BC SPCA have written letters of complaint about the Society to the Minister of Agriculture, Food and Fisheries, the Attorney General and/or the Premier. Below is what most complainants have received in response:

The Premier’s form letter (the MAFF responds with a similar version) reads:

Thank you for your email regarding the British Columbia Society for the Prevention of Cruelty to Animals (BC SPCA).

The BC SPCA is established by the Prevention of Cruelty to Animals Act. The Act incorporates the Society, and sets out the framework of the Society's structure and operations. The Society is not a public organization.

It is a private, non-governmental organization, and like all other private organizations, the Society and its members are free to organize the Society and conduct its operations in the way they believe best suits their needs and purposes.

I am aware that the Society has been overhauling its structure and the roles and responsibilities of its branches, and that there are differing views within the Society on those changes.

I have received a number of letters similar to yours, many of them suggesting that the provincial government should intervene in this situation and decide for the Society and its members how they should conduct their affairs. I have been advised that the Ministry of Agriculture, Food and Fisheries believes that this action is not necessary, nor would it be appropriate. The Society is a private, non-governmental organization and therefore it is up to the Society and its members to resolve matters like these amongst themselves.

Thank you for taking the time to share your views and suggestions on ways to improve the Prevention of Cruelty to Animals Act with me.

Sincerely,
Gordon Campbell
Premier

What the Premier’s letter does NOT say is that the special status government grants the SPCA allowed the Society to change its bylaws in 2001, which stripped 32 local volunteer branch Boards of Directors of decision-making power and reduced them to Community Advisory Committees only. Additionally, members were stripped of votes on operational, financial, and governance issues. This obviously means that the SPCA membership cannot, as the Premier suggests, “resolve matters like these amongst themselves.”

If the SPCA fell under the Society Act (Sections 20 [1] and 23 [1]), the government would have had to review the BC SPCA’s proposed new constitution and bylaws to protect the membership. Because the SPCA has its own Act, the delegates were sold and/or misled, the Registrar of Companies did NOT review the proposed bylaws, and those unwitting delegates who were promised more money and decreased liability for local branches instead helped SPCA executives disenfranchise branches and members from both the Society and voting powers.

It’s fair to say that the two individuals from each SPCA branch who voted for the new bylaws either regret their vote and/or did not understand the implications when they cast it. It is also fair to say that the individual members of the Society’s 32 branches were not consulted as to their positions on the by-laws proposal.

It is circumstances such as these that the Society Act, not the PCA Act, aims to protect. Likewise, I believe the passage of by-laws that would so dramatically change the nature of the BC SPCA should have been decided by all of the Society’s members, in the light of day and with full disclosure of the ramifications such approval would initiate. But due to the draconian nature of the new SPCA bylaws, there is no going back to democracy without government intervention in the form of changed legislation. The Provincial Government either knows or ought to know this.

If the BC SPCA fell under the FOI Act, the membership, staff, the public and journalists could have requested internal documents that may have revealed the CEO’s and the Executive Committee of Management’s agenda in time to prevent the loss of democracy the Society now has. The decline in this social service and its grave fiscal situation may have been averted.

The consequences of the new bylaws have been dramatic. In January of 2003, the SPCA Board of 16 Directors revoked the memberships of three dissenting individuals (two of them award-winning volunteers, one of whom was a Life Member, and the three had a combined 45 years of volunteerism) without a vote being put to the membership. If the SPCA fell under the Society Act, the entire membership would have had to vote at an AGM to revoke those memberships. Clearly the SPCA under its new bylaws would not fulfill the Society Act requirement under Section 7 (2) that “the number of non-voting members cannot exceed the number of voting members.”

This is just one, NOT a rare, example of the fundamental loss of democracy in the BC SPCA since November 2001 when it implemented the new bylaws.

PART THREE: THE PUBLIC’S ONLY RECOURSE:

The only recourse for the public is to submit an FOI request to the Ministry of Agriculture or the Ministry of the Attorney General, but as CKNW’s Bill Good Show and I have now learned this is an unsatisfactory and indirect means to attain information about the SPCA. Here’s why:

Oversight of the SPCA is limited to the cruelty investigation aspects of the PCA Act: The MAFF is responsible to oversee potential by-law changes related only to cruelty enforcement aspects of the PCA Act, and the Attorney General ensures suspects’ privacy and property rights are not infringed during SPCA investigations. Government’s aim, obviously, is to protect potential or actual animal cruelty suspects’ rights NOT to protect the innocent, paying public, the taxpayers, donors, volunteers, and members who provide all of the funds to/for the SPCA. For example and as mentioned above, there is no oversight, as there would be under the Society Act, of changes to internal bylaws about governance etc.

The SPCA, however, submits annual financial statements to government. Under Section 9 (1)[a] of the Prevention of Cruelty to Animals Act, the SPCA must file with the Registrar of Companies within 14 days of its AGM “in respect of the society and each of its branches, audited financial statements, each in the form of a balance sheet containing general particulars of assets and liabilities, and a statement of income and expenditure.” The SPCA has never filed annual audited financial statements. As stated clearly in the BC SPCA’s annual report, the 2001 financial statements were reviewed, not audited by Coquitlam chartered accountants Mohr and Co. The Mohr and Co. Review Engagement Report done for that year’s consolidated financials, clearly says, “A review does not constitute an audit and consequently we do not express an audit opinion on these financial statements.”

The BC SPCA’s Tall Tales, a website section meant to right “rumors,” as recently as April 15, 2003 claimed, "The audited financial statements are distributed at the BC SPCA's Annual General Meeting and are available to any member of the public who requests a copy."

The MAFF told/tells the public that the SPCA is fulfilling its requirements under the Prevention of Cruelty to Animals Act:

"Fur still flying over the way SPCA conducts itself by Lisa Morray, Chilliwack Times February 21, 2003: The B.C. SPCA has come under the scrutiny of the premier's office after questions about fiscal management, according to Barb Wright a spokesperson for the Ministry of Agriculture, Food and Fisheries.

Wright confirmed that Premier Gordon Campbell had asked staff to look into the management of the SPCA.

"They (the SPCA) are not doing anything they shouldn't be doing and are fulfilling the requirements of the act," Wright said.

Wright said the government is aware there has been a furor of opposition to changes in the way the SPCA does business and is keeping track of what is going on. The complaints reached the premier's office because provincial legislation governs prevention of cruelty to animals and specifically names the SPCA as the agency charged with carrying out that mandate.

However, the SPCA is not a public agency although it takes on the role of preventing cruelty to animals in the province and is specifically named in the act, Wright said.

If changes to legislation were required, the government would consider that, she said."

Locally, the fur hit the fan on Jan. 17 when the Times reported the SPCA would close the Chilliwack and Langley shelters. This immediately after volunteer Ena Vermerris spent $30,000 of her own money and invested plenty of community support in building a cat shelter on the property.

By the end of the month, the entire SPCA community advisory council handed in their resignation and former local SPCA treasurer, Sue Vilandre, countered the SPCA's claim that the Chilliwack shelter was sinking by $300,000 a year, instead revealing records that showed the shelter showed a small surplus in recent years.

The SPCA has now announced its intention to build a cat facility at the Community Corrections Centre in the Chilliwack near Young Road and the rail tracks. Vermerris said the SPCA asked her if they could move her cat facility to that location and she turned them down.

That would eliminate the possibility of getting her money back, she explained, and she wants to keep her options open in helping animals, particularly cats, in the Chilliwack community.

"I don't need to be a victim because you haven't got your - - - - together and that's what I told them," Vermerris said.

Vermerris said the SPCA administration told her they were not aware of the cat facility, which she calls "a fairly substantial gift."

"Are they that flush that $30,000 is nothing?" she asked.

Neither the government nor the BC SPCA has been scrupulous about relaying the facts to the public. The SPCA has minimal conditions to meet in comparison to organizations administered under the Society Act; still it has never met and is not meeting one of the few conditions it does have. And, the municipalities are noticing.

February 11, 2004 NOW News -- Council asks SPCA for audit, balanced budget by Simone Blais: After reviewing the books, Port Coquitlam council is calling upon the B.C. SPCA to adopt a sustainable budget and conduct an audit. PoCo's protective services committee recommended council send a letter to the provincial Society for the Prevention of Cruelty to Animals after finding a $4.5- million deficit in the SPCA's unaudited financial statements in 2002. "We're really encouraging them to be a sustainable organization financially," Coun. Greg Moore said during Monday night's council meeting in introducing the two recommendations. "As we pay for these services, we are asking them and encouraging them to do these two things." PoCo recently renewed its animal control contract with the SPCA, effective until 2008, and council unanimously approved sending a letter to the SPCA to not only balance its budget but audit its financial statements annually. The letter said that upon review of the 2002 statement of operations, the city is "concerned with what appears to be an ongoing operating deficit and we urge you to develop a balanced budget." Nancy Gomerich, director of corporate services, noted in her report to council that while some of the losses relate to the reorganization of the SPCA, a significant portion are related to general operations. The second portion of the city's letter asks the SPCA to review its books annually, as "an organization relying on a great extent of donations and fundraising should be audited annually, and this is in fact a requirement of the Society Act." Gomerich also noted in her report that the SPCA's chief executive officer, Craig Daniell, has assured her that the Society's 2003 accounts will be audited.
(Note: Gomerich’s reference to the Society Act is not correct: the Prevention of Cruelty to Animals Act, under which the BC SPCA falls, requires an audit – Kimberly Daum)

BC SPCA CEO Daniell says the BC SPCA will produce an audited statement this year. Where have we heard this before?

BC SPCA Annual general Meeting, April 24, 1999 Meeting Minutes: Treasurers Report by Randy Reynolds. “Mr. Reynolds advised that the Society is required to provide audited Financial Statements to the government. It is hoped that the Society can meet the goal of a fully audited Financial statement for the year 2000.”

BC SPCA Annual General Meeting, April 27, 2002 Transcript of meeting tape. Provincial Treasurer Randy Reynolds: “You know the government requires us to present audited financial statements to them each year. We have never been able to do that but we are headed in that direction…(and intend to) produce an audited statement for the year 2002.”

The BC SPCA keeps promising audited financial statements but never delivers. Its next AGM is in late May. (Saturday, May 29th)

The public interest, members, donors and the Prevention of Cruelty to Animals Act were further insulted when the SPCA failed to submit as required by the law ANY financial statement, either reviewed or audited, to the membership at its AGM on April 26th, 2003. The BC SPCA’s 2002 financial report was released at an October 18, 2003 Special General Meeting, months after what was required by the Cruelty Act. Price-Waterhouse-Coopers’ Review Engagement Report appears on page 15 of the Annual Report and includes a paragraph saying, “The review does not constitute an audit and consequently we do not express an audit opinion on these financial statements.”

Given the many complaints to the Premier and the Ministry, and that I have told the Ministry myself that the SPCA has not audited its financial statements, the government is obviously aware of the facts, and the public wants to know, among other things, why the SPCA is not held to account and why the government is covering up for the SPCA. Even if the Society files audited statements for 2003, those questions will remain open since they are aimed at government not the BC SPCA.

Circumstances such as this cry out for solutions, one of which would be including the BC SPCA under the Freedom of Information and Privacy Act.

PART FOUR: FILING A REQUEST FOR INFORMATION:
Ministry of Agriculture, Food and Fisheries File # 292-30/AFF-03-004
Office of Information and Privacy Commissioner file: OIPC file# 17606.

On February 6, 2003, CKNW’s Bill Good Show, for whom I was working freelance, submitted a request for information to the Ministry of Agriculture, Food and Fisheries. The MAFF originally estimated a total fee of $1937.50 for the records. On March 3rd 2003 we requested a fee waiver on the grounds that these records were in the public interest. The Ministry agreed there was some public interest and subsequently subtracted $870 from the original estimate, leaving $1,067.50 outstanding.

We aimed to reduce those fees further. I was CKNW’s point person for negotiations through the Freedom of Information and Privacy Commissioner’s Office and clerk Celia Francis was assigned to us. Peter Smith of the Ministry of Transportation acted for the Ministry of Agriculture, Food and Fisheries. Arguments were sustained and complex. The question we aimed to answer with the requested records was: What is the nature of the special relationship between the BC SPCA and the provincial government? We hoped fulfillment of our request would help protect the public interest and benefit the public that supports the SPCA through provincial and municipal tax dollars, donations and volunteerism.

In its April 9, 2003 letter in response to The Bill Good Show’s request for a fee waiver, the MAFF said:

1) “There is some public interest in the underlying issue regarding the SPCA.” 2) “However the records held by MAFF could only provide a partial picture and access to them alone would therefore not serve the public interest to the fullest extent.” And, 3) “Also, processing this request would result in a large impact on MAFF resources.”

The Bill Good Show responded on April 30, 2003 with the arguments below: (in italics to be understood as direct quotes from that submission).

1 a) The MAFF is the custodian of public records which are by definition entirely of public interest since the public – not the ministry or bureaucracy – entirely pays for and owns them.

b) Beyond that, the public through contacting media and complaining to the MAFF has shown active interest in knowing more about the relationship between it and the SPCA. The MAFF’s response has been to obfuscate and sidestep, which has increased, not diminished, the interest in the relationship between the two.

c) The Liberal government, when in opposition at the time the PCA Act was debated in the legislature, shared many of the same concerns the public has brought to The Bill Good Show’s attention. Hansard from April 13, 1994 has Mike de Jong on the record saying:

“I object to granting any organization a legislative monopoly unless there are truly compelling reasons to do so. It is not good for taxpayers to have no choice, and it is not good for the best-intentioned organizations to have no competition or possibility of competition in the future. I am thinking specifically about many municipalities who have animal control bylaws and pound facilities. Every two or three years these matters are put out to tender. Does this bill mean that when a municipality put it out to tender, two contracts will be let to police the animals within the municipality? I don’t think that’s right.”

Langley Township councilors, whose animal control contract is up for renewal at the end of June, are on the record in the April 16th Langley Times. Councilor Kim Richter accused the SPCA of playing games and said, “There is a lot of discontent in the community with the SPCA.” Councilor Penny Kirkpatrick said, “I don’t think we have to have a song and dance to get them to the table” and added that council “should not be serenading the SPCA.” Langley Township staff, after the SPCA had cancelled a meeting in which it was to present its position, said, “staff have been unable to understand the SPCA’s position.”

Mike de Jong also said in the legislature: “It’s a very strange kind of privatization: giving police powers to a private organization. If the subjects were people rather than animals, it would be like turning the justice system over the B.C. Civil Liberties Association. To have a say in the policies adopted, you would have to buy a membership.” He asked whether this was “just another downloading of costs on local government” and “what is riper for empire-building than a legislated monopoly? And he wanted to know, “What is wrong with local convenience and local accountability to taxpayers?”

Clearly, the then-opposition/now-government was/is aware that the public has an interest that would/will not be protected by the “very strange” relationship between the Province and the SPCA. Mike de Jong concluded by saying, “The intent of the bill may have some good in it, and there is a definite need to address. But I fear the minister has been offered a quick fix, a superficially appealing solution which contains many hidden pitfalls and unforeseen consequences.” The day of pitfalls and consequences has clearly arrived, but the MAFF, in its correspondence to individuals who have complained, has made it equally clear that it is unwilling to admit to or remedy that.

2 a) With all respect to the MAFF, government routinely provides only a “partial picture” of any story. It is the job of media, in this case The Bill Good Show, to balance coverage of any story with documentation and interviews from various sources of information. The Bill Good Show has a firm grasp of the obvious and does not require advice from government about how to cover issues. We have already done considerable work based on over a hundred sources and thousands of pages of SPCA documents, which resulted in six programs during the past year and a bit. Those programs included interviews with six animal welfare advocates, seven SPCA spokespersons, two union representatives, our freelancer/analyst, as well as dozens of callers to the open-line. Government knows the work our show has done since it is cited in the Chilliwack Times saying it monitors media reports about the SPCA. Indeed, it is only government’s information that is missing from this story, which is the nut of the problem and the reason for the request. We suspect the government also knows that.

b) The comment “access to them alone” seems disingenuous since the government that gives the SPCA special status through its own Act also lets it keep almost all of its important and relevant operational, governance, and other information private from its partners, members, donors, and taxpayers. And the government knows the relatively informed public is dissatisfied, as Mike de Jong was, with this situation.

c) Because the SPCA or anyone else refuses to willingly provide particular relevant information to the donating and volunteering public is NOT reasonable justification for the MAFF to classify its information as having less public value.

3 a) The MAFF provides $70,000 annually to the SPCA for training Special Constables. The Solicitor General’s Ministry provided more than $1 million in gaming money to the Society last year. Accordingly, the fiscal argument to not waive the fee holds no water. If government can afford to fund its controversial relationship with the SPCA it most certainly can afford a one-time outlay of resources to tell the public the full nature, depth, scope and tone of that special and strange relationship. Two thousand dollars to inform the public is a fraction of the funding government has given the SPCA during the years or in comparison to what the government spends on advertising its policies to the public. The Province and the MAFF have responsibility to provide the public with reasonable access to its government/public records since it, alone, holds them and since it exists solely for and because of the public interest.

b) Clearly, most members of the public would find the estimated charges for this search onerous. (Indeed, even the Bill Good Show does since it very rarely files FOI requests and so does not budget for such fees.) The FOI process will not work to protect the public if the cost of accessing the service is more than most of the members of the public can afford. The Bill Good Show has invested many, many more hours and resources in research and production than the ministry estimates it would to fulfill our request. We have done our duty to inform the public and protect its interest at NO cost to the taxpayers or individuals since advertisers pay for our service; now it is time for government to fulfill its duty and inform the public for NO ADDITIONAL cost to taxpayers, of which CKNW is one.

A July 22nd 2003 letter from the Commissioner’s Office Celia Francis urged us to narrow our request by removing the public’s complaints, which would be laborious for the ministry to produce, in order to reduce the fees for the records. We had previously made the arguments below in our April 30, 2003 submission to Ms. Francis.

Narrowing the request: It was members of the public who brought the Society’s legal status, their concerns about and knowledge of it to us. It was members of the public who wanted to tell what they know and to learn what they do not know.

Our animal welfare sources, which include SPCA members, have informed us and we have informed the general public about the SPCA and its legal – indeed special -- status. What we have been unable to do is inform people about the details of the relationship between the SPCA and the Province. Both seem very reluctant to provide reasonable access to information of that nature.

Narrowing the request would make absolutely no sense given the MAFF’s assertion that its information could provide only a “partial picture.” Narrowing the request within the context set by the ministry would further reduce its part of the picture and would, according to its logic, further diminish The Bill Good Show’s ability to “serve the public interest to the fullest extent.” That is obviously not the idea or in the interests of public service and freedom of information.

MAFF reveals a complainant's personal information to the SPCA:

During the course of our request, the Ministry of Agriculture, Food and Fisheries breached the Freedom of Information and Privacy Act by copying its response thereby revealing a complainant’s personal information to the BC SPCA. This situation was referred to in our April 30th 2003 submission to the Commissioner’s Office; that referral is noted below in italics:

Re: Tim Wittenberg Complaint; OIPC File No. 17371
Your office has the above complaint in process. This is another example in a range of concerns about the relationship between the MAFF and the BC SPCA. Celia Francis of your office is handling that file.

Our conclusion in the April 30th 2003 submission to the Commissioner’s Office is included below in italics:

Conclusion: According to the MAFF, the BC SPCA is a “private society.” BUT it does public business. The government has chosen through legislation to give the SPCA enforcement powers but has not subjected it to FOI search. If the Province handled cruelty enforcement its department, employees or agents would fall under the FOI Act. If municipal staff handled it the same would apply. Police are subject to the FOI Act. We are entitled to know exactly how they make decisions, operate, and budget and spend our money.

The provincial government has on one hand, by giving the SPCA its own legislation, made it special compared to other societies and exempted it from the more democratic and stringent conditions of the Society Act. On the other hand, it gave the SPCA policing power but exempted it from a suitable public process where one can scrutinize and review its intentions, operations and inner workings. The result is a hyper-organization, an “empire,” that does public work in two capacities – provincial cruelty investigations and municipal animal control contracts. In practical reality it is accountable to no authority that ensures the entire operation, with three competing functions, is inclusive, transparent and accountable to a public that fully supports it. These exemptions mean the SPCA can maintain secrecy and/or switch hats to serve a particular purpose or self-interest. The SPCA and the Province continue to confuse large portions of the public by claiming the SPCA is only a private society, which by evasion means much of the public mistakenly believes it is just a humane charity and not a special government agent that moonlights as a municipal contractor as well. Practically speaking, people cannot protect their tax dollars or donations through accessible and normal processes. This appears to be the exact legislative sleight-of-hand, the shell game of which Mike de Jong warned and worried.

This, on the face of it at least, is unacceptable. BUT the public can only judge for itself when it has access to ALL of the relevant information that can reveal the nature and details of the relationship between the two parties and what stakeholders, such as the BC Veterinary Medical Association and individuals in the public, report to government. And, that is a primary reason why the MAFF should be ordered to waive ALL of the fees for the FOI request made by the Bill Good Show.

Waiving all fees, at this very late date in the controversy and well into its mandate, is the very least that government can and should do for people’s protection, particularly since it has done so much to protect itself and the BC SPCA. We sincerely hope you see things likewise and order the MAFF to waive all fees in this case.

We remain convinced that the fees should be entirely waived in this case. The Bill Good Show appeals to you for a review of the above file. We have enclosed the seven-page argument we submitted to the MAFF on March 11th.

The Outcome of the Processes: The Bill Good Show narrowed its request by dropping complainants’ letters and the ministry’s responses to them, which the Ministry said was the most time-consuming and costly aspect of the retrieving the documents. We reluctantly agreed to do this because several sources provided their complaints and the ministry’s replies to us, because of the unreasonable cost for those records, and because the condensed version the Ministry offered would provide only what our clerk called “barebones” information, such as complainant “has concerns about the BC SPCA.” This resulted in a new estimate of about $108, which CKNW submitted to Peter Smith’s office.

All processes – the request for records, fee waiver request and request for review -- were concluded on January 14, 2004, more than 11 months after it began on February 6, 2003. At that time, Mr. Smith notified CKNW that “there will be no fees payable for the enclosed records and a refund of your $108.75 deposit has been initiated.”

Seven pages of records were delivered to CKNW shortly after. They included: a one-page 1997/98 BC SPCA grant request for about $72,000 to the MAFF, a two-page MAFF briefing note prepared for the BC Cattleman’s Association’s 2002 AGM who were worried about a philosophical shift in the SPCA’s animal welfare approach, a one-page briefing note for the Minister about the SPCA wanting research protocols to apply to the Canadian Council of Animal Care Products in 2000, a one-page briefing note for the Minister regarding the Cloverdale Rodeo, the Canadian Rodeo Association and the SPCA’s attempt to prevent two rodeo activities not sanctioned by the Association in 2000, and finally a 2-page briefing note prepared for the Minister’s February 2002 meeting with the BC SPCA.

What to say after all of that?

Perhaps the last insult is the worst – there was no information delivered about the outcome of the Minister’s meeting with the BC SPCA in February 2002. The CKNW request for information, when it was submitted in February 2003, included the years of 1997 through to present. If one considers that the actual search and retrieval of those documents did not begin until the Ministry received CKNW’s cheque in December 2003, one recognizes that such documents, correspondence, notes, and/or minutes etc. should have been caught in the request either way. In addition, it defies imagination, not just logic, that the SPCA and the ministry did not correspond or communicate and subsequently record those communications other than to meet face-to-face once in 2002 during the six or seven year period included in our request.

To say the results of our request and the ensuing process was under-whelming is an under-statement of epic proportions.

“THE TIM WITTENBERG CASE”

“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.

A reasonable person would find the Ministry’s $1937.50 fee estimate prohibitive. Considering that the SPCA also falls under the Ministry of the Attorney General, receives gaming monies from the Ministry of the Solicitor General, and contracts with numerous municipalities throughout the province, an individual could easily go broke making Freedom of Information requests to BC SPCA partners.

The Ministry might argue that the original fee estimate was not prohibitive for CKNW. Of course it was since CKNW rarely submits such requests and so does not budget for them. A $2000 bill is not petty.

In the past, government has refused fee waivers for media outlets on grounds that the outlet is self-interested and profit-driven rather than operating in the public interest and to its benefit. Though CKNW is a private company, that case cannot reasonably made here because the now very controversial BC SPCA does public business on two of three counts but is not covered by the Freedom of Information and Privacy Act, and because talk radio by definition involves the public and often responds immediately to it.

The public, including provincial and municipal governments, has a very obvious interest in the BC SPCA. Outside of receiving leaks from inside the SPCA, requesting information about the Society through the government seemed the only way to get any reliable information/documentation about it. I filed several FOI requests to several ministries under the previous government, and was never stymied in those requests. My experience of filing an FOI request for the Bill Good Show to only one Liberal ministry has taught me that this too, where the BC SPCA is concerned, is an unreliable and fruitless endeavor. This government appears to have something sensational and voluminous to hide.

During the past two years, the Bill Good Show and I have been bombarded with emails and calls of complaints about the SPCA; only the rare one is complimentary of it. Many letters request anonymity citing fear of retribution or intimidation from the SPCA while others have alleged SPCA intimidation on the open call line. Many display frustration at trying to get information from and about the SPCA and condemn the lack of accountability and transparency they perceive from the SPCA. They also complain about the government’s apparent reluctance to address the SPCA’s special status and to take seriously complaints about the SPCA.

Media is bombarded with complaints about the BC SPCA. The government is too, but the Ministry of Agriculture, Food and Fisheries refused to review its “large volume” of complaints and its responses to them, and seemed to not want to share them with CKNW. What does it say about the government? Not only is the government’s relationship with the BC SPCA suspicious, its complaint process is now too.

CKNW’s Bill Good Show, CJOR’s The Rafe Mair Show, The Vancouver Sun’s Barbara Yaffe and The Provinces’ Jon Ferry – all of them opinion writers/broadcasters -- have covered stories about the embattled BC SPCA and have hammered it for irresponsibility. Community papers continue to follow developments and problems with the BC SPCA in their communities. Several Lower Mainland municipalities have publicly expressed their frustrations with the Society. The media and municipalities realize the importance of this institution that has been granted policing powers by the provincial government. Though responsible for it, only the government itself seems not to care about the public’s concerns or the BC SPCA’s outcome and the ways in which it does public business throughout the province.
But why should the provincial government care about the animal welfare community’s concerns?
Mad cow/BSE! Oil spills! Cruelty investigations! Animal control services!

The BC SPCA is a valuable public institution because the public relies on it just as government does in various capacities at various times, such as during last summer’s forest fires.

The BC SPCA is officially partnered with Environment Canada and the BC Fish and Wildlife agency in preparedness for oil spills. It has episodic, informal partnerships with BC’s Emergency Social Services in preparedness for natural disasters such as the forest fires where evacuations have been ordered and pets and livestock have been left behind. And it has potential informal partnerships with Agriculture Canada and even Health Canada in the case of disasters of magnitude, such as when Mad Cow occurred in Britain. The BC SPCA has a trained workforce that can respond in such emergencies and as such is vital to British Columbian’s peace of mind and our outcomes in an emergency.
An unhealthy and unpopular BC SPCA is a reasonable concern for all British Columbians and communities that rely on its services. If it loses the public trust while being sanctioned and authorized by government the government is necessarily responsible for its ultimate outcome.

The government, who voted with the former government to grant police powers, may not see the BC SPCA and its well-being as a priority amidst competing priorities. Still, I urge the government to understand that this problem is not going to go away on its own. People involved in animal welfare, as I’ve learned, are extremely devoted – remember the three volunteers whose combined service totaled 45 years. These are the people, along with Tim Wittenberg and many, many others who want the BC SPCA placed under the Freedom of Information and Privacy Act. They are not alone in demanding accountability, transparency and inclusiveness from both the BC SPCA and the provincial government.

The public has legitimate complaints and concerns about the Cruelty law and its consequences, and deserves a fair, meaningful and accessible recourse to discuss and resolve them.

On February 21 last year Ministry spokesperson Barb Wright told the Chilliwack Times that government would consider changing the legislation if that was necessary. It is time for government to keep its word. The BC SPCA, like all other policing powers in BC must, as a result of this Review, be included under the Freedom of Information and Privacy Act. And government should not stop there. The Provincial Ombudsman and the Society Act, or at least the many rules within it, should in near future play roles in holding the BC SPCA to account as well. Given its importance to British Columbians and its special status, the hybrid monopoly should live up to higher not lesser standards than other societies even, if not especially, in the course of it finances, operations and governance.

QUESTIONS FOR THE FREEDOM OF INFORMATION AND PRIVACY ACT REVIEW COMMITTEE TO CONSIDER AND ANSWER:

1. In areas where the BC SPCA has a branch, municipal police and RCMP can support SPCA investigations but are not the lead agencies; in areas where the BC SPCA does not have a branch, other police agencies can lead cruelty investigations. Why are police agencies other than BC SPCA, which are more accessible and accountable to the public, not allowed to lead cruelty investigations if/when the public is not satisfied with the SPCA’s performance?

2. The Police Commission reviews complaints regarding the conduct of an individual BC SPCA Special Provincial Constable. So the individual constable is subject to review, but who conducts a similar review of the of BC SPCA’s overall performance?

3. The government admits receiving public complaints but fails to disclose how/if they are resolved. Has the Society’s “special status” and its “special” relationship with the government affected how these public complaints have handled? How can the public find that out?

4. The Ministry responsible for Freedom of Information requests is funded by tax dollars – from both businesses and citizens. How can that office justify charging such exorbitant fees for meeting the requirements of Freedom of Information and Privacy Act? Shouldn’t the information be available as required under the legislation, and why would it matter whether it is a prince or pauper that has made the request? Is it possible the ministry is attempting to make the request for information go away by quoting these exorbitant fees?

5. It appears the government’s Freedom of Information officers decide what is in the “public interest.” What criterion do these officers follow to make those determinations? Is this criterion public information?

6. How many Freedom of Information requests have been determined as “not in the public interest?”

7. How many FOI requests were dropped after the party making the request was told how much the charge would be?

8. Is the government, by exempting the BC SPCA from the Society Act, enabling its attempts to withhold information from the public? The public cannot accept the Society having it both ways – if it has a special relationship with the government there should a mechanism such as falling under the Freedom of Information and Privacy Act and the purview of the Provincial Ombudsman to review its operations. If it does not have a special relationship with the Province it should be subject to the same rules and regulations that other BC societies are expected to meet.

That is obviously not the idea or in the interests of public service and freedom of information.