What the justice minister isn’t saying about access to information
“I think you can see the potential for abuse there.”
— Toby Mendel, executive director of the Centre for Law and Democracy, on Newfoundland and Labrador’s Bill 29
Some people like to use the term “with all due respect” as a precursor to being disrespectful.
Justice Minister Felix Collins is no exception.
In his letter to the editor last weekend, he used that expression before going on to describe me as being irresponsible and a fear-mongerer — saying I was spreading inaccuracies and innuendo.
With all due respect to the minister, that’s a crock.
This government is scary enough in its intent to keep information from the public, without needing me to make it look worse.
Collins may disagree with the examples I used in a column to emphasize why more transparency than Bill 29 provides is necessary, but in doing so, he misses the broader point.
It doesn’t matter so much what the public was able to find out using access to information legislation in the past; what matters is what it won’t be able to find out in the present, thanks to a draconian new law that no one save the governing Tories thought was necessary.
In his letter, Collins wrote: “Ms. Frampton further states that information regarding the search for a new president for Memorial University would not be released under the new amendments. Again, Ms. Frampton is wrong.”
That, too, is a crock.
At the time, the education minister was asked directly whether she had corresponded with the board of regents at Memorial University about the presidential search, and she said no. It was only when the Liberals used access to information legislation to obtain the correspondence that the government’s interference in the process went from being widespread rumour to cold, hard truth.
That is precisely the kind of information that, under Bill 29, could be withheld from public view in two ways: one, because it could be deemed cabinet documentation; and two, because the government now has the ability to deem requests frivolous and vexatious, which is a handy-dandy way of protecting itself from politically troubling disclosure.
Even privacy commissioner Ed Ring has acknowledged that the definition of what constitutes a cabinet document under this new legislation offers “a lot of wiggle room.”
And speaking of Ed Ring, Collins was quick to tout the privacy’s commissioner’s support for the new rules, without noting that Ring is in the government’s employ. True, his office may operate at arm’s length from the government, but the last time I checked, an arm’s length is only about two feet — not exactly a great divide.
Curiously, Collins was also hot off the mark to point to a ranking of the legislation by the Centre for Law and Democracy — it put this province in second place out of the five jurisdictions in Canada it has assessed so far in terms of access to information.
This is the same Centre for Law and Democracy, you will recall, that angered Collins when it suggested that Bill 29 put this province behind countries such as Mexico, Ethiopia, Nicaragua, Bulgaria, Guatemala and Uganda in terms of draconian access legislation.
Now, Collins is using the centre’s “second place” rating to suggest it applauds the legislation.
But he isn’t telling you the whole story. Why? Because it doesn’t support his assertions.
This province may rank second out of the five Canadian jurisdictions that the centre studied, but Canada has an appalling record when it comes to access to information.
As noted in J-Source on June 15, an online publication of the Canadian Journalism Foundation:
“The Centre for Law and Democracy ranked Canada 40th out of 89 countries in terms of access legislation in the fall of 2011, and last month, Canadian Journalists for Free Expression gave the federal government an F for access to information in its annual report.”
Toby Mendel, the executive director of the Centre for Law and Democracy, is quoted as saying he had never seen as broad an exception as the provincial government’s rule about what can be withheld because it is considered a cabinet document.
“It applies to the documents that even though they were never looked at by cabinet, and even though they never even tangentially impacted on anything that cabinet did, somebody claimed that they were prepared for cabinet, and that’s enough to claim an exemption.”
And in the same article, Fred Vallance-Jones, the journalism professor at the University of King’s College in Halifax who led the Canadian Newspaper Association’s Freedom of Information Audit last year, called Bill 29, “the biggest step backward in access in Canada in recent memory.”
“It curates some of the worst provisions of the legislation and then modifies them and bundles them together into this package that seems to give incredible power to either disregard or condemn request all because people in government find access to be a bit of a bother,” he said.
How’s that for definitive?
I’d stack those assessments up against Ed Rings’ “the legislation remains robust” any day of the week.
And here’s something else Collins hasn’t been doing too much talking about. His government likes to say that Bill 29 stemmed from recommendations made by lawyer John Cummings in his review of our access to information legislation.
But what doesn’t get said is that Cummings recommended that the privacy commissioner get the final say on whether or not an access request was trivial or vexatious. Collins et al. chose to ignore that little piece of advice.
Now, the minister can dismiss what I’m saying in as many forums as he likes, but he cannot dismiss the truth, no matter how he tries to cloak it.
With Bill 29, the public’s right to access information from the government has been compromised.
Not enhanced, not streamlined, not improved.
Pam Frampton is a columnist and
The Telegram’s associate managing editor.
She can be reached by email at