A surprise government announcement could lead to the resolution of long-standing controversies about police secrecy.
THE BRITISH COLUMBIA PROVINCIAL GOVERNMENT has pledged to pass legislation to make the BC Association of Chiefs of Police and BC Association of Municipal Chiefs of Police “public bodies.” The announcement came from Bette-Jo Hughes, Chief Information Officer and Associate Deputy Minister of the Ministry of Technology, Innovation and Citizens’ Services, speaking in mid-November to MLAs reviewing the Freedom of Information and Protection of Privacy Act. The amendment to FOIPPA could resolve many concerns about how the associations operate—concerns that Focus has been reporting since 2012.
“I will be prepared to celebrate when the ink is dry,” commented Micheal Vonn, policy director for the BC Civil Liberties Association. Vonn has reason to be concerned. For years, members of the associations have sidestepped transparency and accountability by ping-ponging between claims that they were acting as “private citizens” or “public servants.” For example, the BCACP and BCAMCP successfully asserted that they were not subject to freedom of information laws because they were private groups. Conversely, the associations didn’t have to register as private lobby groups, because their members successfully argued that they were public servants just doing their public duties.
Over the course of reporting on the subject, I eventually obtained some heavily censored minutes of BCACP and BCAMCP meetings on file at police departments. I learned that, aside from police officers, members of the BCACP included senior representatives from public bodies as diverse as the BC Ministry of Justice, Conservation Service, CSIS, FBI and Canada Post, along with representatives from the private sector such as banks.
And what were they doing? On the “public” side, for example, the associations were developing policing policies, coordinating police forces, crafting legislation, signing commitments for all police departments, and appointing officers to public agencies. On the “private” side, they were raising funds, speaking to media, and lobbying. The conflicts of interest in this unusual setup were many: The police officers took thousands of dollars from the banking industry while pledging to improve police responses to crimes at banks. Some chiefs and their police boards were taking positions in support of medical marijuana, while the same chiefs, through these associations, were lobbying government against medical marijuana.
Was all of this ethical? Or legal? BC Information and Privacy Commissioner Elizabeth Denham held an inquiry and determined that the associations acted like public bodies. In April 2014, Denham recommended that the government pass legislation to clarify that the associations were public bodies. The government did not do that, and the ping-ponging has continued since Focus last reported on the topic.
Commissioner Stan Lowe declared that the police chiefs’ activities were “not within the jurisdiction of the Office of the Police Complaint Commissioner” because the associations were “private organizations.” Mayors Lisa Helps and Barbara Desjardins, co-chairs of the Victoria and Esquimalt Police Board, declined to become involved and stated that “this Board does not play any direct governing role” over the associations. Staff Sgt. Julie Moss dismissed my complaints about RCMP officers taking money from banks, on the grounds that the BCACP was a private society and the RCMP officers were acting “in accordance with their responsibilities listed under the Society Act.” Moss didn’t even mention the Royal Canadian Mounted Police Act requirement “to avoid any actual, apparent or potential conflict of interests.”
One time, I got a jail-like grip on the ping-ponging ball: I caught a chief in the act of switching hats, moving my letter and personal contact information from his public police department to the private BCACP, and then sharing it with the BCACP’s diverse members. With this careless dispersal of my confidential personal information, he must have breached laws covering public or private bodies—surely one or the other or both? This June, Patrick Egan at the Office of the Information and Privacy Commissioner (OIPC) dismissed my complaint. Despite my explanations that most of my investigations into these associations were occurring in my personal time as a private citizen, Egan took the position that I was actually working in my public capacity as a professional journalist when I wrote that letter. Therefore, concluded Egan, “the information about you in the letter is considered ‘work product’ and not personal information,” and could legally be shared far and wide. Essentially, Egan seemed to think that I was just trying to pull a fast one on an innocent police chief: Imagine Wipond believing he can simply switch hats at any time between his public and private roles and get away with it!
I tried using the associations’ vague status to aid me in a complaint to the OIPC about the censored sections in the associations’ minutes. I pointed out that all of the supposed confidential information in them had been openly shared by the chiefs with a diverse array of public and private sector members and guests affiliated only by virtue of their participation in these unofficial groups, all of whom had apparently also received unredacted copies of the minutes without any clear confidentiality policies in place. Therefore, I argued, the police departments who’d given me copies had no right to censor the records now as if they were the minutes of highly confidential internal policing operations. But in November, OIPC adjudicator Elizabeth Barker upheld virtually all of the redactions, as if the associations were public bodies operating confidentially. “In my view,” Barker wrote, “there is nothing to suggest that [the members] are acting in their private or personal capacity when participating in BCACP and BCAMCP activities.” Pong!
Like me, Pivot Legal Society lawyer Douglas King said he felt frustration with much of Barker’s decision. King and Vincent Gogolek of the BC Freedom of Information and Privacy Association had provided an intervenor submission. “In some ways, it was the easy decision,” said King. “But it didn’t really get to the heart of the matter.” King pointed to how Barker ignored the associations’ own claims in other contexts about their private status, downplayed the fact that some members weren’t public servants, and uncritically accepted assertions that the associations operated with an implicit “understanding” of confidentiality.
“It’s like creating two tiers of members of the public,” said King. “You’ve got members of the public who are part of these police organizations, who are in the favour of the police, and they have access to these documents that the other part of the public doesn’t have…It’s almost like it gives the police the ability to invite whoever it wants to be part of the government for the day.”
This became secondary, though, after Hughes’ surprise announcement of the plan to bring clarity. “[G]overnment is drafting an amendment that will change the definition of a ‘local public body’ to include a police association,” stated Hughes. “This change will cover the BC Association of Chiefs of Police as soon as the amendment is passed and will allow the BC Association of Municipal Chiefs of Police to be covered once it is a legal entity.”
“It’s exactly what we asked for right at the outset,” commented Vonn.
“I’m happy to see it,” said King. “Our fear always from the beginning with these organizations was that they were downloading decision making and authority to private bodies away from the public eye. Making them public bodies obviously prevents them from doing that…It’s the correct decision.”
At a press scrum with OIPC Commissioner Denham and Assistant Commissioner Michael McEvoy, I asked: Other than finally having to respond to information access requests, what changes in information handling and sharing practices will the associations have to make once they’re legally identified as public bodies?
“They will have to figure that out,” answered McEvoy.
“They will have to figure it out, because they’re going to be under a legal obligation to,” said BC FIPA’s Gogolek. “They’re now on notice.” Gogolek noted the amendment would allow the OIPC to investigate the associations. “Given the ambiguity around these bodies, it might be a useful thing after 12 or 18 months for the Commissioner’s office to go in and take a look and see how they’re doing in terms of compliance.”
Could this also affect the associations’ policing policy and governance activities? “I think the police had it pretty easy…in being able to run some of their more controversial and difficult policy decisions through [the associations] so that the public didn’t really have much of a say in them,” said King. “Maybe this is the beginning of the end of that.” And it should prompt public debate about “docile” police boards, added King. “Unfortunately, over the last few years, from our experience, the BCACP seems to have more power and control over actually setting police policy than the democratically appointed police boards. That’s concerning. The fact that police boards seem to be all too willing to allow another agency to step in and play their functional role—it shows how ineffective the police boards have been.”
Moving ahead, King suggested organizations like Pivot be allowed to participate at BCACP and BCAMCP meetings. “If that’s where policy is being created, in a democracy, the public has to have a say.”
At deadline, the BC government told Focus that there was “no timeline” to actually pass the amendment. Vonn advised remaining vigilant. “I have every reason to think they wouldn’t want to do this; they’ve resisted it so far,” said Vonn. “I think this is only voluntary insofar as a certain amount of attention has been brought to bear on the issue.”
Rob Wipond won a Webster journalism award last year for his writing in Focus on the police chief associations. He’s currently working on a book.