Stephen Harrison is holding his local police to account, and so can you

Lessons learned from a Victoria resident's years of filing FOIs

An FOI I received in 2020.

As a journalist pursuing accountability around systems of power, one of the most important tools is freedom-of-information legislation — laws that in jurisdictions across the country require public bodies to disclose public documents, albeit with limitations.

These are often documents that would never otherwise be released to the public, and some of the most damning investigations have come as a result of requests under FOI — or ATIP, as they are referred to federally — requests.

If you’ve read this newsletter for any amount of time, you will have seen some of my own work resulting from FOI requests.

I’ve uncovered how the housing crisis has impacted voluntary treatment admissions, how the Housing Accelerator fund is (or isn’t) accelerating housing, and what the provincial government’s own internal reporting was saying about decriminalization — contrary to the public discourse the province bowed to.

It’s also a challenging system to navigate — even as a full-time journalist who is paid to be able to navigate the system, it requires having time to think of wording for your request, working with FOI analysts to narrow or refine your request, tracking requests that go beyond their due date, pestering public bodies that blow past their legislated deadlines, dealing with extension requests, and if you’re really dedicated, filing quasi-legal complaints about fees, redactions and more with your jurisdiction’s information commissioner.

And that isn’t even getting to the point of going through potentially hundreds of pages of documents to search for information that is of interest.

One person, however, has proven a skilled FOI-er, and he’s using his skills to hold his local police accountable — something he does in his spare time.

I spoke to Stephen Harrison about his work as a police accountability advocate, and his advice for how you, too, can hold your authorities to account.

Harrison has been active with his blog Needs More Spikes since 2017, initially looking at hostile architecture, including looking at BC Housing’s collaboration with Victoria police around using fencing to keep unhoused people away from their property, which brought him into the police accountability sphere.

His expertise with FOIs isn’t a result of training per se — he formerly worked with independent MLAs in legislature, and got practice with filing FOI requests that way, and he’s been doing it ever since.

Here’s some of the advice he had for how you can be active in accountability for your local authorities, be they police, school districts or other public bodies. This will mostly be directly taken from his own words, with my own words here and there in italics.

His words have been lightly edited for length and flow. Each section should be read as a collage of statements, rather than as a single statement. Our conversation often returned to the same issue at different times, and those excerpts have been compiled together.

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How to find FOI ideas

I’ll go to the police board meeting each month. And that is where you can find lots of ideas, potentially, for FOIs. Like, here’s something odd in the agenda, which probably nobody’s ever going to hear about again, unless you ask more questions.

Or even you can look at an agenda package and see if there's things in there that interest you. If there’s something you think is a problem, or something that you haven't seen any public reporting on, you can always file an FOI about it.

I’m looking for things that they would never willingly report on themselves, but where I know they have that information. So for example, the street checks FOIs years ago, I knew they were collecting data on street checks. We knew street checks were racist. White people like data before they take action on that — I know Desmond Cole has a good quote around that, that white people need the stats before they’ll do anything.

And we knew that was out there, but the police were never going to report on it themselves.

VicPD has a big transparency section on their website. It’s all stuff that they want to put up there. It’s their PRIME stats and police calls and things like that.

They’re never going to put up use of force data. They’ll never do that willingly, and the province doesn’t even report on things like vascular neck restraints.

The province collects these huge data sets from each municipal police body every year, and they publish some summary data, but they don’t publish all of it. So I requested that data and was able to show, here’s how often VicPD is beating people in handcuffs, and all these sorts of things.

You can always FOI your FOI. I don’t really recommend that, only in a niche situation. I don’t think it would necessarily be useful or appropriate for every FOI you do.

But if you get a response back that you think is disingenuous or it’s a non-response, but you know full well that they almost certainly have records, you could FOI the processing of requests and see who are they engaging with, how are records collected, was there an internal panic? What went on?

So I don’t think that works for, or even makes sense for, every FOI. But if you get something back and you’re pretty sure something has gone on between the time you sent it and the time you’re sent back, that might be worth doing.

That’s the only way I was ever able to get street check stats out of VicPD. I asked for their stats, and they responded that they were not able to pull the stats. I FOI’ed the internal response to my FOI, they had pulled the stats, they just didn’t want to send them because they didn’t think they exactly spoke to how I’d phrased my request.

I’d asked for the number of individuals street checked, and they’re like, “One individual could have a street check more than once, so therefore this stat is not responsive,” or something like that. It wasn’t a problem for any other police department.

Since our conversation, which took place in April, I messaged Stephen to mention I finally got around to putting this together, and to let him know the format it would be published in, and he added one additional piece of advice on finding FOI ideas:

One of the best places to get FOI ideas is from other people's FOIs. E.g, my street check FOIs and analysis built directly off the work of Black Lives Matter Edmonton; my FOI on VicPD retirements while under investigation was based on FOIs by CBC's Taylor Lambert's FOIs of Calgary and Edmonton police. If you see a successful FOI in another jurisdiction, it can be worthwhile trying to replicate it where you live.

Advice on crafting an FOI request

If you want to FOI something, be as specific as you can, if you can. If you saw in an agenda they referenced a new policy or a report and it’s named, ask for that report by name, or that policy by name.

That’s your best bet for an FOI. You don’t have to be that specific. You can ask for emails around an issue or about that report or policy. But the narrower you can be the better.

So don’t ask for all emails in history about Issue X. Maybe you only care about the last week between these two school trustees or something like that.

One tip — and especially for police, I’ve found some success — if there’s a press release about an issue, you might have more luck asking for emails that went into the creation of the press release, in response to the press release, than you might elsewhere. You might see a bit of how that came to be and glean a bit more information there.

You want to make sure you’re not asking for every person in a public body to look for their emails because then you’re not going to get anywhere. You’re going to get a huge fee assessment, or they’re just going to tell you to go away.

You could look at existing or past FOIs — there’s the Secret Canada database that would have past FOI language, and then the province has their FOI database. You can look at how past FOIs have been crafted, and try to go off that.

The Investigative Journalism Foundation has their own database as well.

How often are FOIs useful? And what to do with it?

I think lots are and some just aren’t. Maybe it’s around 50%. Sometimes it can just be hard to put things together, stitch a narrative together. So I’ve definitely fallen into the trap of FOI-ing something and thinking, “Oh, there’s probably a story here. But what I really need is this other piece; I’ll FOI that. And I’ll FOI this other agency.” And now, instead of having done one small story about something interesting, I’ve done no stories about what is now an overwhelming monster.

The other thing I would say, which I haven’t really perfected, is if you want to hold a body accountable, you can do what I do: you could blast something out on social media. If you want it to be noticed more, you could probably develop some sort of media strategy or send it to a specific journalist in advance of doing that [social media blast] or send it to a bunch of journalists after you've done that, try to get it noticed a bit more if you want. I don’t often do that, but sometimes I do.

Time spent on FOI requests

The amount of time spent on any given FOI request depends on the request itself:

Street checks was a big data set, lots of tables and charts and things, and that was probably hundreds of hours, I would guess — at least 100 hours, surely.

It was all the municipal police departments, and chasing that all down. I think VicPD I had to hassle and maybe appeal to get data out of them eventually. And then yeah, a lot of the data at that time was sent in paper copies. Then I was transcribing and then data checking.

And then doing the analysis and learning more about Excel and all of these things. It felt higher stakes than some of my things that I’m dashing off, like I should actually get all this stuff right.

It does take time. If you have a good idea for an FOI, you could probably dash that off in five minutes.

Beyond that, an applicant may need to spend time on filing a complaint with or requesting a review from the Office of the Information and Privacy Commissioner, and that can be far more time consuming:

If they’re not responding, and then you have to craft an appeal and get that OIPC appeal package, that’s not insignificant. You’re probably going to spend half an hour putting that together at least, like, here’s all my bullets and timeline, and here’s my email exchange with them, and that’s a lot of work.

FOIPPA violations to expect

Most common is definitely blown deadlines. There’s a law that says when these records are due, and sometimes they’ll just blow right past that. And if you don’t reach out, you potentially may never hear back. … They still have you over a barrel. They have the records, and even if you appeal, which can then take ages, although the deemed refusal* appeals, they seem to move a bit faster.

The act includes a duty to assist, and I would say they botch that all the time. VicPD, I won’t hear back from them on a request until the day it’s due, and then they’ll send me a response, which says “No records,” or some agencies will wait the whole 30 days or whatever, and then provide you with a fee estimate, an outrageous fee estimate, whereas really, it could be, and should be, a back-and-forth.

I got a $50,000 fee estimate from VPD. They must have known I wasn’t going to pay them $50,000. They, I would say, had a duty to assist and reach out and say, “Hey, let’s work with you and narrow this request.” And then there was further violation of the duty to assist, where I was offering how I would suggest we narrow this request, and then they just didn’t respond.

I get that from VPD more than anywhere else, I would say. I don’t know what that is, or what that’s about, but they seem to do that a lot.

Harrison also points to privacy being used as a reason to redact information:

I have not tested it yet, but police seem to be applying more heavily their personal information redaction, so just not giving reports back at all.

I know there’s personal information in police reports. I don’t care about the personal information in police reports. I don’t want to know somebody’s name, I don’t want to know where they live.

But they’ve taken to applying it to the whole report. So even the narrative details. It could be a random report — I don’t know anything about this person, I’m never going to be able to tie narrative information you give me to any individual. But they’re saying, “No, it’s all personal information because it was gained during a police investigation.”

Part of the appeal I’m working on today, I’m going to try to get the OIPC to test that as well, because the VicPD has been doing that as well. I’ve noticed a big shift there in what I used to get from VicPD in terms of police reports and what they’re giving me now, which is just nothing, or essentially nothing.

If you file an FOI request for emails about a particular subject, some agencies may try to get away with redacting parts of those emails that aren’t about that particular subject:

Years ago, the privacy commissioner said no, you can’t do that, you’ve got to give the whole thing. But definitely SD61 tried to do that, I think VicPD tried to do that. And then you have to tell them off and, actually, you can’t do these things.

OIPC successes to learn from

Harrison notes that he’s been able to make use of “deemed refusal” complaints — if a public body misses its legislated 30-business-day deadline, the OIPC deems that public body to have refused to disclose the records, and you can file a complaint to bring them into compliance with the law:

Sometimes the OIPC intervention can tip over to actually getting a records response, whereas they might not have otherwise. Maybe it’s harder to quantify, but I think it’s more successful than now, where if you just left it, you probably would never get the records.

Sometimes you can get — I think I’ve only had this once, maybe twice — a consent order, where the OIPC gets the public body to sign that “We’re going to provide the records by this date.” And the one time I’ve had that happen, it did work out. I don’t know how one gets to that, but I’ve had it happen once.

I have no insight as to why it was in that case and not in other cases, but I enjoyed it. When I apply for deemed refusals these days, I think I mention in my application [that] I’m seeking a consent order, or whatever it is.

Responding to extension requests

Public bodies have 30 business days to respond to an FOI request (federal ATIP requests have a 30-calendar-day timeline), but while it’s not uncommon for public bodies to blow past deadlines, it’s also common for them to ask for an extension — or to unilaterally take an extension in certain circumstances in which the legislation allows it.

Should you grant it, or not?

I would say it depends. If I’ve got a lot going on, whether it’s this type of work, or whatever it is in my life, and I know full well that I’m not going to be doing this in the next 30 days, I might just not respond to that.

Usually, I will respond and just say, on principle, “No, I do not consent.” Or if the option is there for that 30-day extension, I would refuse that every time, unless there are compelling reasons that I can’t be bothered.

And if they blow a deadline, I usually won’t go straight to the OIPC. I’d set my own new arbitrary deadline, like, “If I don’t hear from you by end of the week, I’ll go to the OIPC.” And I think with the new OIPC appeal process anyway you have to show that you’ve done a little back and forth before you go to them.

So I would say it varies, but I would only consent to an appeal if I can’t be bothered to say I don’t.

What needs to happen to improve FOI accessibility?

If the agencies were actually abiding by the law and responding appropriately and on time, that would immediately make things more accessible. If they were playing by what should be the agreed-upon set of rules — it is the law — that would already make it much more accessible.

It shouldn’t be incumbent on somebody to know that you can’t redact non-responsive records. That’s a very niche thing to know that there was an order 10 years ago that they can’t do that. Who’s going to know that? Or that they shouldn’t be charging you as a commercial applicant, or that you can get this $50,000 fee down to $100 without too much work.

When New Westminster PD said, “We’re shutting down FOI for the summer because we’re on vacation” or whatever, I’m sure the reason they were doing that is they probably just had one person assigned to FOI. But that in itself is a choice. And New Westminster PD, like all police departments, are incredibly well resourced. They do not need more money to do FOI. They have the money if they want to appropriately resource their FOI shops.

They could be doing that already, so it’s a choice not to.