In a win for transparency, the BC Utilities Commission reverses an earlier ruling that its reasons for the Cambie Gardens Energy complaint decision should be confidential.
Background
The matter concerns a complaint filed jointly by SUCCESS Affordable Housing Society (SUCCESS) and the City of Vancouver (City) against Cambie Gardens Energy Limited Partnership (Cambie Gardens Energy).
The parties were unable to reach an agreement on the price, terms and conditions for Cambie Gardens Energy to provide building heating to SUCCESS, who leases a property owned by the City.
The BCUC closed the complaint without setting a rate for the parties, and gave them an additional six months to continue negotiating an agreement.
The issue
The BCUC provided a summary of the decision, but determined that the main body of the decision, including the reasons, would remain confidential. There are two concerns here: one of principle, one of practice.
The BCUC claims to conduct “open and transparent” reviews, but there’s nothing terribly open and transparent about not sharing the reasons for your decisions. This is an important point of principle. As part of BC’s justice system, it’s not enough for the BCUC to make fair and unbiased decisions, it must also be seen to do that. Without reasons, the public would have every right to question both the soundness of the BCUC’s decisions and its motives.
Transparency is important for practical reasons too. The Utilities Commission Act is written in quite general terms, leaving detailed interpretations to the expertise of the BCUC. Think of rates, which must be a “fair and reasonable charge for the service provided” – what does that actually mean? Each BCUC rates decision provides examples of how it interprets the phrase when it encounters real-life situations.
In the current case, Cambie Gardens Energy was allowed to retain its regulatory exemption, which means the BCUC has no role in setting the utility’s rates, but we don’t know why. Utilities are usually only granted a regulatory exemption if they have negotiated competitive rates with their customers before they started building their facilities. Does this mean the BCUC is reinterpreting the exemption order differently to how it did in the past?
Also, the BCUC went on to give the parties “recommendations and guidance” for their subsequent negotiations – but again, we don’t know what that advice was. Are there lessons other utilities can learn from that advice to avoid ending up in front of the BCUC responding to a complaint?
Freedom of Information request
Fortunately, in BC we have the Freedom of Information and Protection of Privacy Act (FIPPA). The purpose of the freedom of information aspect of this legislation is to “make public bodies more accountable” by providing a legislated right of access to public records. Since the BCUC is a public body, it has an obligation to make its records accessible whenever possible.
As you may recall, I made a formal request under FIPPA that the BCUC release the full Cambie Gardens Energy decision. Except for confidential evidence disclosed to the BCUC by the parties in the proceeding, one of FIPPA’s “limited exceptions,” there is no good reason to keep the decision and its reasons confidential.
After consideration of my request and having conducted due process to consult the views of the parties to the proceeding, the BCUC has changed its mind. Its current view is that the decision should be shared in as much detail as possible. The BCUC has drafted a redacted version of the full decision, blacking out only the confidential evidence.
It’s not over yet
Cambie Gardens Energy indicated it did not consent to the disclosure of any part of the BCUC’s decision (neither SUCCESS nor the City raised any objections). The BCUC overruled Cambie Gardens Energy, explaining that it did not have the power (as a result of FIPPA) to withhold any part of the decision other than the confidential evidence, which it had already redacted.
The BCUC has, however, given the parties in the proceeding until January 10 next year to decide whether they want to request a review of the BCUC’s proposed publication. If none of the parties makes such a request, the redacted version will finally be made public.
Conclusion
For now, though, I’m satisfied. The BCUC has responded to my request in a timely manner, done a thorough job in considering its obligations under FIPPA, and written clear and concise reasons why it now proposes to make the redacted decision public. It also ensured that all parties affected by this rethink had their say.
I’ve attached the BCUC’s letter disclosing its reasons below (this was sent to me as the Applicant referred to in the letter). The letter is unlikely to appear on the BCUC’s web site, since the original complaint proceeding is now closed.
There are some important reminders in all this:
- The BCUC’s work is generally accessible to the public (even if they need a gentle reminder from time to time).
- FIPPA is a powerful tool for ensuring public bodies such as the BCUC remain transparent. When presented with a reasonable request, and knowing the power of the Information and Privacy Commissioner, public bodies will usually do the right thing.
- FIPPA is still only a tool. There is no organization out there policing public bodies to ensure information has been made transparently available; we have to do that ourselves.
Transparency is an important principle of good regulation. Decisions must not just be fair; they must be seen to be fair. It’s good to see the BCUC agrees.
Attachment – BCUC’s FOI decision
The British Columbia Utilities Commission (BCUC) writes in response to the Applicant’s [Richard Mason] Freedom of Information Request filed on October 15, 2024 (FOI Request) for a copy of the reasons contained in the decision accompanying Order G-249-24 (Decision).
The BCUC has carefully reviewed the Decision and considered whether the Applicant is entitled to access. For the reasons that follow, the BCUC finds that the Applicant has a right of access to a redacted version of the Decision.
Background
On September 24, 2024, the BCUC issued Order G-249-24 and accompanying Decision regarding a complaint filed by S.U.C.C.E.S.S. Affordable Housing Society (SUCCESS) and the City of Vancouver (City) against Cambie Gardens Energy Limited Partnership (CGE). The complaint, made pursuant to Section 83 of the Utilities Commission Act (UCA), concerned the parties’ inability to reach an agreement on the rates and terms for the delivery of thermal energy services from the CGE Thermal Energy System.
During the proceeding to review the complaint (Complaint Proceeding), the BCUC issued Order G-306-23, in which the BCUC ordered that certain information filed by CGE was to be kept confidential from the public due to the presence of commercially sensitive information, until further order of the BCUC. In Order G-249-24, the BCUC ordered that the Decision and the information filed confidentially in the Complaint Proceeding were to remain confidential until the BCUC determines otherwise.
On October 15, 2024, the BCUC received the FOI Request, in which the Applicant requested access to the Decision. The Applicant stated that they understood the Decision may be redacted to avoid disclosing confidential evidence submitted by parties in the Complaint Proceeding. On October 25, 2024, the BCUC emailed a proposed redacted version of the Decision to the parties to the Complaint Proceeding. Pursuant to section 23 of the Freedom of Information and Protection of Privacy Act (FIPPA), on October 29, 2024, the BCUC indicated, by email to the parties, that the Decision contained information that might be harmful to the parties’ business interests. Accordingly, the BCUC requested that the parties provide their stance, by November 27, 2024, on the disclosure of all or part of the Decision to the Applicant.
On November 15, 2024, the City responded to the BCUC’s request by email, and indicated that it did not take a position on the disclosure of the Decision.
On November 18, 2024, CGE responded to the BCUC’s request, and indicated that it did not consent to the disclosure of any part of the Decision or the materials prepared or reviewed in connection with the Decision. In particular, CGE submitted that:
- The Decision, in its entirety, contains trade secrets and commercial, scientific and technical information of CGE;
- CGE had been very clear throughout the Complaint Proceeding that its information is sensitive and should be treated confidentially; and
- The disclosure of CGE’s trade secrets and commercial, scientific and technical information would cause harm to CGE in various ways, including by harming CGE’s competitive position and interfering with contractual or other negotiations.
On November 27, 2024, SUCCESS responded to the BCUC’s request, and indicated that it had no questions regarding the disclosure of the information in the Decision.
Legislative framework
Section 4 of FIPPA provides a public right of access to records in the custody or under the control of a public body, and provides in part that:
4 (1) Subject to subsections (2) and (3), an applicant who makes a request under section 5 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant.
(2) The right of access to a record does not extend to information that is excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record, an applicant has a right of access to the remainder of the record.
Section 61 of the Administrative Tribunals Act (ATA) provides, in part, that FIPPA, other than section 44 (1) (b), (2), (2.1) and (3), does not apply to any information received by a tribunal “in a hearing or part of a hearing from which the public, a party or an intervener was excluded.”
Pursuant to section 2.1(n) of the UCA, section 61 of the ATA applies to the BCUC.
Section 21(1) of FIPPA sets out an exception from the public right of access relating to information the disclosure of which would be harmful to the business interests of a third party, and provides as follows:
21 (1) The head of a public body must refuse to disclose to an applicant information
(a) that would reveal (i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of or about a third party,
(b) that is supplied, implicitly or explicitly, in confidence, and
(c) the disclosure of which could reasonably be expected to (i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii) result in undue financial loss or gain to any person or organization, or FOI Request Response 3 of 3 (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.
Sections 23 and 24 of FIPPA govern the process and timelines for providing notice to third parties of a decision regarding granting access to information that might be excepted from disclosure under section 21.
BCUC determination regarding FOI request
The BCUC has reviewed the FOI Request and the submissions of the parties in light of the requirements of FIPPA.
The BCUC notes that, in Orders G-306-23 and G-249-24, the BCUC ordered that the information filed confidentially in the Complaint Proceeding was to remain confidential until the BCUC determines otherwise. The BCUC accordingly finds that this confidentially-filed information—including, among other things, confidentially filed information requests and argument—is information received by the BCUC “in a hearing or part of a hearing from which the public, a party or an intervener was excluded,” for the purposes of section 61 of the ATA.
As such, FIPPA does not apply to this confidentially-filed information.1 In particular, the Applicant does not have a right of access to this information further to section 4 of FIPPA.
The BCUC has accordingly prepared a redacted version of the Decision in which information that was filed confidentially in the Complaint Proceeding has been redacted (Redacted Decision). However, the BCUC has not redacted information contained in a confidentially-filed document that is also found in a publicly-filed document in the Complaint Proceeding.
The BCUC has also considered whether there is any additional information in the Decision that the BCUC must refuse to disclose to the Applicant pursuant to section 21 of FIPPA. However, the BCUC notes that, in order for information to fall within the ambit of section 21 of FIPPA, it must have been “supplied, implicitly or explicitly, in confidence” to the BCUC. All of the information that was supplied in confidence to the BCUC in relation to the Complaint Proceeding has already been redacted further to section 61 of the ATA, as discussed above.
As such, the BCUC finds that any information that the BCUC must refuse to disclose to the Applicant further to section 21 of FIPPA is redacted in the Redacted Decision.
Pursuant to section 4 of FIPPA, the BCUC finds that the Applicant has a right of access to the Redacted Decision. In particular, all information which either (i) is excluded from the application of FIPPA pursuant to section 61 of the ATA or (ii) the BCUC must refuse to disclose pursuant to section 21 of FIPPA has been severed from the Redacted Decision.
Pursuant to section 24(3) of FIPPA, the BCUC will provide the Applicant with the Redacted Decision, unless CGE, the City or SUCCESS asks for a review of this decision on the FOI Request by January 10, 2025. As such, the BCUC has provided a copy of the Redacted Decision to CGE, the City and SUCCESS along with this letter.