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.
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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.
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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.
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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.
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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.
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“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.
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DISCUSSION and CONCLUSION:
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.
Thank-you for taking the time to consider this submission:
Kimberly Daum |
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Read more:
Daum Report
Animal Rights Coalition
Government Review
Warnings in Hansard
1994
AAS concerns
Professor Geist's letter to
Attorney General
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