In November 2015, representatives from The Ubyssey, the Alma Mater Society and CUPE Union 116 spoke in downtown Vancouver to a legislative committee that was reviewing BC’s Freedom of Information and Protection of Privacy act (FIPPA). Their plea was the same. Public bodies – such as the University of British Columbia — have been spawning wholly owned and controlled subsidiary companies to perform public functions and manage billions of dollars in taxpayers’ money. Yet UBC claims its companies are not covered by Freedom of Information (FOI) laws (link) because they are “private and independent.” This trend is quietly and adroitly defeating the entire purpose of FOI, and it was a main theme of the 2018 Right to Know Week which took place September 24 to 28.
The problem was heavily underlined in 2006 when I filed a request to the UBC to ask for meeting minutes, annual reports and salary records of three of UBC’s wholly-owned corporate entities.
The first concerned land use. The university’s 100 hectares of public land was once managed by a real estate committee of the UBC Board of Governors. It was later renamed UBC Properties Investments Ltd. — which controls the UBC Properties Trust — whose self-described mission is to “acquire, develop and manage real estate assets for the benefit of the University.”
It has a monopoly on all development that happens on campus, manages private rental housing for non-students and is the landlord for most of the commercial space. Since then, students and staff have bitterly complained about its secrecy, in regards to the new mini-city arising on site, the mass cutting of trees to make way for it and UBC’s building of high-priced condos for sale.
The second company, UBC Investment Management Trust, acts as investment manager of UBC’s huge endowment fund and its staff pension assets, making decisions worth billions of dollars. The third, UBC Research Enterprises Inc., takes research developed at UBC and creates spinoff companies.
The university refused, so I appealed to the information commissioner. In 2009, adjudicator Michael McEvoy ruled for disclosure, writing: “All three bodies were entities created and owned 100 per cent by UBC and accountable to it.”
The case was won mainly because had I quoted from a dozen of UBC’s own official websites, which boasted that UBC had a high degree of control over its entities and had appointed their boards. UBC then deleted the websites, and its lawyers later belittled them as items “allegedly” found on the internet.
Students celebrated the outcome, to the point of the AMS issuing a premature press release to announce the problem had been solved forever (link?). But it was too good to last. UBC appealed that order, as did Simon Fraser University in a similar case. The BC Supreme Court overturned the commissioner’s order, stating that one must not “pierce the corporate veil.” And there it stands today.
What are the usual arguments against FOI coverage?
Firstly, UBC and SFU may bemoan the risk of “competitive harms” to their companies. But this claim is illogical because most have no real competition, being monopolies within their parent institution. Private land developers such as Omni or Concert Properties cannot legally demand to come in and compete with UBC Properties Investments to plan market housing there.
Secondly, it would not matter even if they did because they are already fully protected from competitive harms in sections 17 and 21 of FOI laws.
If such claims were accepted, then no Crown corporations would be covered by FOI and yet they all are. Even former prime minister Stephen Harper amended the federal FOI law to cover all Crown corporations’ subsidiaries. Such is the global FOI standard.
For now, BC public bodies can still veil their records in the vaults of these companies in a process critics call “pseudo-privatization” and “information laundering.” This secrecy creates potential breeding grounds for waste, wrongdoing and risks to public health and safety.
In theory, what if UBC Properties Investments had commissioned a consultant’s report which found that its residential buildings had fire hazards or chemical fumes? The UBC residents could not obtain that report under FOI, and they would never know. It would stay buried in the vaults forever because a company could claims it as FOI exempt.
In sum, many UBC residents and students have protested UBC’s secrecy about its real-estate company ever since its creation nearly 30 years ago. Must they now wait for another three decades? Or will our new government finally resolve this long-festering sore, as it has pledged to do?
But UBC officials will likely push back hard to stop this FOI coverage, as they have for many years. If you care about this issue, please write or call Premier John Horgan as well as MLA and Attorney General David Eby to make your views clear.
Stanley Tromp is a UBC alumnus and former writer for The Ubyssey. He is currently an independent news journalist.