Lawyers spent most of the day in Newfoundland and Labrador Supreme Court arguing the finer points of access to information legislation.
At issue is the role of Ed Ring, the Information and Privacy Commissioner, and his powers to act as an independent watchdog on access to information legislation.
Chief Justice David Orsborne, who heard the case, ended the day by saying he had “a fair bit to chew on,” and that he will be reserving his decision for another day.
The case was originally sparked by an access to information request filed by The Telegram in January for three days of then-Business Minister Ross Wiseman’s emails.
In response to the request, the Department of Business provided The Telegram with five emails from the three-day period. The newspaper was informed that all other emails sent and received by Wiseman were of a political nature, and therefore excluded under the Access to Information and Protection of Privacy Act (ATIPPA).
The Telegram appealed the request to Ring, who has a legislative authority to review access to information requests and determine whether an applicant got all the documents they were entitled to.
Ring’s office contacted the Department of Business and asked for all of Wiseman’s emails to review them and determine whether only political emails had been properly excluded.
The Department of Business refused to give the emails to Ring, so the Information Privacy Commissioner’s office took the matter to court.
The government argues that it isn’t legally obligated to hand anything over, based on a 2010 precedent involving the Information Privacy Commissioner’s office and the government, on behalf of the RNC.
At that time, Justice Robert Fowler concluded that Ring does not have the right to look at a broad swath of documents listed under the act including anything an MHA deems to be a constituency record.
Fowler acknowledged that the decision served to neuter Ring’s power to review government’s actions on access to information, but he said the only option was for the legislature to change the law.
"I agree that this weakens the power of the act; however, it is only the legislature that can change that," Fowler noted in his decision.
On Friday, lawyers for the Information Privacy Commissioner argued that Ring needs the power to review those documents to serve his mandate as an independent watchdog.
“There’s no independent review unless he can satisfy himself,” lawyer Anna Cook said. “Otherwise, my lord, you’re left with the public body’s say-so that it is, indeed, what it is.”
Cook also argued that the facts of this case are substantially different from the ones raised in 2010.
Lawyers for the government argued that the Fowler case has already set a precedent, and the issue is therefore settled.
Most of the day’s proceedings involved questions from Orsborne on legal minutia — were the parties in this case different than the parties in the Fowler case? What constitutes access to information versus access to a record?
But at the end of the day, Ring was saying that the broad issues in the case are sufficiently important that if he doesn’t win, he’ll likely appeal it.
He said it cuts to the core of his job as Information Privacy Commissioner, and the people’s legislated rights under ATIPPA.
“One of their rights is to be able to appeal to the commissioner’s office for a review of a decision of a head of a public body,” Ring said.
“It should not be for a head of any public body to say to the oversight body, sorry, you don’t have jurisdiction.”