My mistake

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On Monday, The Telegram ran a story by me about how the government’s hands might be tied from releasing Muskrat Falls oversight documents because the oversight committee would report directly to cabinet.

It appears that I got some things wrong, and so I want to explain what happened and correct the mistake. But it also turns out that the actual state of things is more puzzling than I expected. So for you access-to-information policy nerds out there, this might be of interest.

Last week, when Premier Tom Marshall announced that a committee of bureaucrats would be doing Muskrat Falls oversight and reporting to cabinet, something struck me as odd.

Cabinet documents are secret – no ifs, ands, or buts – so the conventional wisdom goes.

And so, if the Muskrat Falls oversight committee is reporting directly to cabinet, then the documents they’re preparing cannot be released publicly, you would think.

But when Marshall the government is beefing up oversight of Muskrat Falls, he said that would include more publicly available information.

Faced with this apparent contradiction, I approached Liberal Leader Dwight Ball, New Democrat Leader Lorraine Michael and the premier’s office about it.

In reporting the story, I had conversations with at least half a dozen fellow access to information geeks, all of whom were under the same impression: cabinet documents are secret — no leeway.

Ball and Michael agreed with that assessment. Like me, they believed that cabinet documents must be kept secret by law.

The premier’s office issued a brief statement but Marshall did not do an interview for the story.

“There will be a new oversight protocol put in place with a reporting structure that will require a public report. We will not contravene the Access to Information and Protection of Privacy Act. Minister (Derrick) Dalley will announce full details next week.”

So with nobody telling me I’d got it wrong, and with two party leaders telling me I’d got it right, we ran with the story.

Then, after the story ran, people started telling me I got it wrong. (http://bondpapers.blogspot.ca/2014/03/doh-telegram-shags-up-muskrat-falls.html)

Let’s back up a bit and explain how we got here.

During the Bill 29 filibuster in spring 2012, the House of Assembly spent more time on Clause 6 than pretty much anything else. Clause 6 was the amended rules governing Section 18 of the Access to Information and Protection of Privacy Act (ATIPPA), which deals with cabinet secrecy.

A particularly notorious part of the debate was the “may vs. shall” amendment, put forward by the Liberals.

Clause 6, as it was written, said the government “shall” withhold cabinet documents. The Liberals wanted them to change that to “may.” Basically, the argument went, the government could still keep cabinet documents secret if they wanted to, but they’d at least have the power to make things public if they chose to.

The Tories voted down the Liberal amendment, and so the law now says the following:

“The head of a public body shall refuse to disclose to an applicant a cabinet record.”

In hindsight, I should’ve spent a little less time focusing on the seventh word in that sentence and a little more time on the 13th word.

By saying that the government “shall refuse to disclose to an applicant” any cabinet document, the government has a loophole.

They can make any cabinet document public they want to, as long as nobody has applied to see it.

Marshall made this point in the House of Assembly on Tuesday, the day after my story ran.

“Mr. Speaker, with all due respect to the leader of the Opposition, I believe that our interpretation of the legislation differs. He is referring to the fact where there is a third-party request for information. There is nothing in the ATIPP legislation that prevents government, with the exception of some privacy information, from voluntarily releasing information that comes — we release reports all the time. The midwifery report, I think, and the busing report, those reports were released and we will continue to do so.”

If Marshall had said the same thing to me before the story went to print ... well, hindsight is 20/20.

Here’s what’s weird to me, though. If somebody files an ATIPPA request for a document that’s gone to cabinet, the government must, by law, refuse to give it to them. However, if nobody asks to see a document, then the government is free to make it public if it chooses to.

Basically, the only cabinet documents that Bill 29 places under lock and key are the ones that people ask to see.

This raises all sorts of weird questions. The school busing report, for example, is publicly available on the Department of Education web page. But if I file an ATIPPA request for it, does the government have to refuse it because it’s a cabinet document? (That request would probably be dismissed as frivolous — and rightly so — but still...)

The bottom line is I got it wrong, and I apologize for that. Bill 29 does not tie the government’s hands when it comes to releasing documents on Muskrat Falls oversight.

But you’ve got to admit, the rules are wonky.

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