A report into the Aug. 4, 2014 Mount Polley Mine tailings breach by B.C.’s information and privacy commissioner reveals the public has the right to know more about the mine previous to the breach.
“There is clearly information in the hands of the government that is in the public interest and falls under the duty to inform,” commissioner Elizabeth Denham told the Tribune after her report was released Thursday morning. “Because there is such public interest in mining and mining safety in B.C. right now, I say yes there are many records that meet the threshold of public interest.”
Denham’s office looked at all the records concerning the mine between 2009 and 2014.
The investigation did reveal two documented events that could have triggered a disclosure requirement — a tension crack described in a 2010 annual inspection report, and a “freeboard incident” where the water level in the tailings pond rose above that which was permitted by safety protocols.
However, the report found the government had not failed in its duty to warn the public.
“The government did not have information that would have triggered a duty to warn the public because the failure of the tailings pond was from a structural flaw in the foundation of the dam that the government, mine operators and inspectors were not aware of,” she said. “This test is not about what the government ought to have known. It’s about whether or not the government knew.”
In the report, Denham reset the interpretation of the duty to inform, which will result in a significant public policy change for all public bodies in the province.
“They will need to look at their records in a new way,” she said. “Previously there was a very narrow view of what was in the public interest. It required urgent circumstances, but I have clarified and redefined that test.”
Government will now have to go back and re-evaluate documents and proactively disclose those that meet the new test, she said, noting matters deemed to be in the public interest override all the other parts of the law, including personal privacy and third-party business interests.
Complaints from the Environmental Law Clinic at the University of Victoria and the Freedom of Information Privacy Association sparked the investigation, Denham said.