The Search for Buried Treasure: Offshore Oil and Gas and Secret Reports
Truth is the primary beneficiary of the freedom of information laws that shine light on government actions. But truth may prove harder to find if the BC government succeeds in a recent case before BC’s Freedom of Information and Protection of Privacy Commissioner.
The case deals with West Coast Environmental Law’s request for documents related to the production of an expert report on Offshore Oil and Gas exploration, but the larger issue at stake is whether government can suppress publicly funded policy advice by contracting it out to the private sector.
Background
Since the federal government put a moratorium on drilling in place in 1959 (briefly lifted for two years in the 1960s), BC’s coast has been off-limits to oil and gas extraction because of environmental risks. Politicians at both the federal and provincial level are getting increasingly excited about the economic potential of offshore oil and gas exploration and drilling in BC.
With new political interest in offshore oil, the federal and provincial governments have commissioned what seems like a never-ending stream of studies and inquiries on the subject. But despite widespread public concern, the government does not seem willing to share their findings with British Columbians.
When lawyers from West Coast Environmental Law tried to dig a little deeper than a basic report released in 2002 by the provincial government, they hit a brick wall of secrecy. This past spring, some two years after we first asked for documents related to the production of an expert report on Offshore Oil and Gas exploration, West Coast Environmental Law finally got the opportunity to ask the Freedom of Information and Privacy Commissioner to order the government to turn over key documents.
What did the Scientific Panel find?
In the Fall of 2002, the BC government asked an expert Scientific Panel, chaired by Professor David Strong of the University of Victoria, to look whether offshore oil and gas resources could “in fact, be extracted in a way that is scientifically sound and environmentally responsible…”
The Scientific Panel delivered its report to government in January 2002. From the beginning, the province seemed strangely reluctant to release information concerning this report.
On February 20, 2002, after waiting over a month for the report’s release, West Coast Environmental Law, put in a request under the Province’s Freedom of Information and Privacy Act, and requested that the government produce “copies of the panel’s report, copies of all drafts of the report” and copies of other documents related to drafts of the report. Under the Freedom of Information and Privacy Act the government is required to respond within 30 days, or file for an extension (60 days). We received no response at that time.
We now know that back in April 2002, a government employee, making notes about the release of the report and drafts to West Coast Environmental Law, wrote “[The Ministry’s] plan is to wait for public release of report and send it to all applicants and hope it suffices in place of drafts. If West Coast Environmental Law still wants drafts and the rest they’ll deal with it at that time – not concerned about the diminishing timelines under the Act.”
On May 1, 2002, the Ministry of Energy and Mines released the long-awaited Report. And then, on July 5, the Ministry told West Coast Environmental Law that it did not have any of the requested drafts or other documents we had requested. The Ministry said that because these documents had been prepared by the Expert Panel, and not by government employees, they were not “under the custody and control of the Ministry” and were therefore could not be demanded under the Freedom of Information and Privacy Act.
The Ministry’s approach is alarming. The Expert Panel was contracted with public money to prepare a report on proposed public policy for government. The contracts signed with the experts and their support staff explicitly stated that the government could access drafts of documents prepared.
After two years of negotiating with government for the release related documents related to the report (a process slowed by the fact that the Ministry cut its staff dealing with Freedom of Information requests from eight to one during this same period), this dispute has finally gone to the Freedom of Information and Privacy Commissioner. We are hoping for a decision this fall.
Are these the actions of an open and transparent government?
The government is now maintaining that the written contracts did not reflect the agreement it had with the experts, and that the parties actually intended that the government, and therefore the public, would not be able to access drafts of the report.
We believe that there is no legal basis on which the Ministry can refuse the drafts of the report and are confident that the Commissioner will rule in our favour.
With government contracting out more and more government business, the Ministry cannot be allowed to pretend that documents prepared for the public with public funds are private documents, not available to the public.
When elected, this government promised to be the most open and transparent in Canada. At least when it comes to decisions about offshore oil and gas, it has failed miserably.
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