By Sarah Cox for The Narwhal
BC Hydro has gone to court to avoid revealing the names of public employees who decide which companies are awarded lucrative Site C project contracts during construction of the $10.7 billion hydro dam.
B.C.’s Office of the Information and Privacy Commissioner (OIPC) ordered BC Hydro to release the information after Vancouver freelance journalist Bob Mackin, who publishes The Breaker News, lodged a complaint about missing data in Freedom of Information responses and the OIPC conducted an inquiry.
“We’ve got a right to know who is being paid to build and operate and make decisions on any public project or any public office,” Mackin told The Narwhal. “There’s no reason why we can’t have it.”
Mackin said journalists and the public must be able to verify that people making decisions about Site C project contracts are free of conflicts of interest and that they are “not awarding contracts to friends or co-workers, or people they’ve worked with before or companies that they might hold shares in.”
“While their identities are shielded…the conclusion of the public would be ‘maybe there’s something going on behind the scenes,’” he said. “We really need to know that this project is being done in the best fashion. Let us see that this is being done properly.”
BC Hydro’s legal challenge — filed January 18 in BC Supreme Court — comes as the B.C. Legislature expense scandal ignites calls for increased transparency and accountability in government operations.
The Site C dam on the Peace River in northeast B.C. is the largest publicly-funded infrastructure project in B.C.’s history.
According to BC Hydro’s website, the hydro project provides opportunities for “a number of large contracts for major project components, as well as multiple smaller contracts for supporting activities and ancillary works.”
BC Hydro awards some contracts directly while others — including contracts worth millions of dollars and, in two cases, $1.6 billion and $1.75 billion respectively — are subject to a bidding process.
Mike Larsen, president of B.C.’s Freedom of Information and Privacy Association (FIPA), pointed out that governments routinely release the names of public employees, including the names of people making decisions about major expenditures from the public purse.
“FIPA’s position is that the OPIC made an effective and accurate ruling in this case and that their decision was a reasonable one,” Larsen told The Narwhal.
He said BC Hydro’s reluctance to release the names of employees involved in adjudicating Site C project procurement proposals is especially concerning given the current “crisis” at the B.C. Legislature, as details continue to emerge about the lavish expenditures of sergeant-at-arms Gary Lenz and clerk Craig James.
“We don’t want to be in a situation where public employees are able to make decisions without the knowledge of the public and without some reasonable degree of scrutiny.”
In a claim rejected by the OIPC, BC Hydro says in court documents that making the names public could constitute a threat to employees’ physical and mental health and safety.
The court documents note that while public debate about the Site C project has often included “genuinely constructive, reasoned and peaceful protest and complaints, there have also been alarming displays of physical and threatened violence.”
As one example, BC Hydro cites a Site C project public information meeting held in Dawson Creek in July, 2015, where a protestor ripped down displays, overturned tables and screamed obscenities at BC Hydro staff.
RCMP who were called to the scene fatally shot a masked man they believed was responsible for the protest, but the person they killed was not the protestor, BC Hydro notes. The Independent Investigations Office investigated the shooting and cleared the RCMP of any wrongdoing.
BC Hydro also claims that unspecified persons made “veiled threats of future violence” at public meetings about Site C and that unspecified persons working on the project were told if they entered private properties impacted by the dam the landowners would be there with “guns waiting.”
In its December 11 order, the OIPC said it was not satisfied of a sufficient connection between the disclosure of withheld employee names and a threat to their health or safety.
“There is no suggestion that particular employees have been targeted because of their association with Site C.”
Incidents described by BC Hydro — which included the discovery in 2017 that a stop sign on the Site C construction site had two bullet holes in it — were directed at the Site C project in general and not at specific employees, the OIPC noted.
“No evidence was provided, however, that anything remotely similar has occurred at BC Hydro’s offices where the procurement assessment presumably takes place and records of the type at issue here are dealt with….It seems more likely that if anyone were to be the target of animosity related to Site C, it would be the board of directors or senior management, yet BC Hydro has not kept their names from the public and there is no evidence that they have been harassed.”
Larsen said FIPA will be watching the judicial review closely, saying it is “unfortunate” it might not be heard until 2020.
Freedom of information law exists to allow the public to scrutinize government decisions and understand how those decisions are made, under whose authority, and who is making them, Larsen noted.
If names are not released, “you can see the slippery slope that leads us to in terms of rendering controversial processes less transparent simply by virtue of the fact that they’re controversial…”
Given the contention surrounding energy projects in Canada, and the Site C dam in particular, Larsen said these projects “are precisely the kinds of things that we want to scrutinize and to have full and informed debate about.”
The OIPC also ordered BC Hydro to release minutes from board of directors meetings and an e-mail exchange with its main civil works contractor, Peace River Hydro Partners, a foreign-owned consortium.
The OIPC agreed with BC Hydro that disclosing information about the Site C project’s contingency figures could be harmful to BC Hydro’s financial interests.
But the OIPC was not satisfied that disclosure of contingency funds already spent on the main civil works contract “could reasonably be expected to harm BC Hydro financially or economically,” according to the order.
BC Hydro is not contesting the rest of the OIPC order and Mackin said he expects the information will be delivered to him this week.
Last year, an international hydro dam construction expert described the high level of confidentiality surrounding the Site C project as “extraordinary” and said he has never encountered such secrecy during his five decades designing, developing and managing large hydroelectric projects, including in China.
The B.C. energy ministry said in an emailed response to questions from The Narwhal that the government cannot comment on BC Hydro filing for a judicial review of the OIPC order “out of respect for the judicial process.”
Sarah Cox is an author, journalist and public speaker based in Victoria, B.C.