Reviewing access to information — again

Russell
Russell Wangersky
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There’s nothing quite like history to trip you up: it repeats more than a bad burrito.

Here’s one interim premier, Beaton Tulk, in the House of Assembly on Dec, 4, 2000, when the government announced a review of what was then known as the freedom of information act: “Mr. Speaker, this government is confident that the act is working well, but we also acknowledge that there have been no major changes to the act since it was enacted in 1981. … This government has no intention of hiding behind legislation. We are committed to an open, transparent process in the development and implementation of public policy. And we want to ensure our legislation remains clear and relevant in this new age of information.”

Here’s another interim premier, Tom Marshall, talking to reporters about reviewing the effects of Bill 29 on the province’s access to information law: “People I talk to about Bill 29, when I ask them, well, what parts of it were you concerned about? They didn’t say anything. … There was just a feeling out there that there was something wrong with Bill 29.” (Don’t forget: this government has also steadfastly argued it was the most open and transparent in the nation, echoing Tulk again.)

In some ways, the comments

are almost interchangeable: there’s nothing really wrong, but, hey, we’ll have a look anyway because people are complaining.

Well, when the review was done for Tulk’s “working-well” act, plenty of problems were exposed — and, if this proposed Marshall review is done right, there will be some pretty clear problems to deal with as well.

What are the things that people have been unable to explain to Mr. Marshall?

Well, here are a few. First, Bill 29’s expansion of the definition of the types of documents that can be withheld for the purpose of protecting cabinet secrecy.

Virtually any correspondence between a minister and any staff can now be deemed secret and sealed for years. While there is a valid argument for secrecy for the deliberations of cabinet, the ability to label anything embarrassing as a cabinet document is just plain insulting. It can be used to exclude any record, any time.

There’s also the broader interpretation of what constitutes confidential business information. When a statutory review drew up the basics that became Bill 29, the commissioner doing the review had this to say: “The submissions made to me and my own experiences in government have convinced me that greater protection is required to protect government negotiations and third party information.”

That’s been interpreted, post-Bill 29, to mean you can withhold even the amount the government has paid for tendered services.

Here’s the thing, though: when you decide to deal with the government, you should have to expect that details will be available to the government’s shareholders, otherwise known as the taxpayers. If you take the government dollar, you have to expect the public scrutiny that comes with it.

Don’t like the scrutiny? Don’t take the money or contracts. (Here’s an interesting aside: the review that led to Bill 29 has been deleted from the provincial government’s website.)

Third, the broader definition of what constitutes solicitor/client privileged information. Right now, government officials can claim that a document is solicitor/client privileged, and at that pont, even the province’s access commissioner is not allowed to review the documents. A special, and expensive, action has to be taken at the Supreme Court, giving a financial “get-out-of-releasing-information” card to anyone who claims the exemption.

Another change that should be considered? Allowing the access commissioner to not only rule that information should be released, but to order its release. A cabinet minister who withholds a document is naturally in a conflict of interest; the commissioner is the first line of objectivity in the equation. Allowing the commissioner to order the release of documents takes away the stain of conflict.

The list goes on and on, but what’s really remarkable is that, until now, the provincial Tories have been confident that everything was just fine, just like the provincial Liberals were.

What’s changed? The same thing that changed with Beaton Tulk.

Things only really change for access to information when governments are either in flux, or can’t help but tilt towards broader change.

So history repeats.

Oh, and one last thought on who should do the upcoming review? Premier Marshall has announced there will be a panel of three committee members doing the review.

Not bureaucrats or former bureaucrats, politicians or former politicians. Remember that line above, the “in my own experience” one? It’s, in itself, an admission of conflicted interests. That won’t move the balance back the other way towards openness.

Since there are to be three committee members, how about at least one of them being an independent specialist in access to information?

Another, more radical option? How about an experienced user of the legislation from the other side,  a frequent requester or someone otherwise familiar with the way the ever-growing loopholes are exploited to block the release of information?

The last review was all about closing doors at the request of civil servants. Perhaps this review should look at opening them, for all of us.

Russell Wangersky is The Telegram’s

editorial page editor. He can be reached by email at rwanger@thetelegram.com.

Organizations: Supreme Court

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  • Blackout Bill
    February 01, 2014 - 11:50

    Newfoundland and Labrador had just went through our spending scandal and found out that a lot of our Honorable members weren't so honorable. This is when I think this Bill 29 started to be tweaked, developed and stink its way out of the back rooms of the tory caucus. Our Government then couldn't do what in wanted in public, that a so called arms length company could do. They formed Nalcor, then placed a few hand picked patronage positions to the Board, some even tried to pass themselves off as Liberals. All of a sudden they were being referred to as experts and they removed all the accountability. Its like doing the exact opposite of what they should have after the spending scandal. Now Nalcor is like a Middleman between Government and Big corporate business, I think! Bill 29 is simple. It forces the people of the province to have to take the word of someone in government without any proof. Bill 29 removed pieces of our legislation that were there to protect the people from just such things. The people of the province doesn't have to take someone's word for it, even if they are a passionate. The Torys have removed the peoples right to know for no good right. also, regarding what the current Premier was saying when he asked someone what they didn't like about the bill and they couldn't answer it. Well since Felix Collins couldn't give us an example of why it was so great they day he announced it, I still haven't heard from the premier why it is so wonderful for everyone. I guess that's a secret too.

  • Jim Bennett
    February 01, 2014 - 06:35

    Instead of the citizen having to prove why s/he should have the info, government should have to prove why the citizen should not have the info.

  • Ken Collis
    February 01, 2014 - 05:57

    “People I talk to about Bill 29, when I ask them, well, what parts of it were you concerned about? They didn’t say anything. … Call me foolish but I can't imagine that the people Mr. Marshall speaks with would be considered a good cross section of the general public. To me his statement comes across as Ms. Dunderdale's famous "the people just don't understand" comment. Would the Premier please tell us who he spoke with, or is this information classified too?