Perhaps the most telling part of the province’s brand-new review of access to information law is that the document was issued in an electronic format so locked down that it doesn’t even allow sections of the report to be copied.
In other words, you have a right to access in this province, but only on the government’s own particular and specific terms.
And, if the latest review is adopted, access law in this province is going to become a joke.
Documents that have been released for years — like the provincial government’s Departmental Salary Details, a budget document that outlines pay increases to civil servants — would be banned from public view, replaced by a nebulous collection of salary “ranges.” The information on salaries paid from the public purse would be secret. Here’s a quick thought: that would essentially mirror the rules that the House of Assembly used to block access to constituency allowance spending — remember how well that turned out?
A bad start
But that’s just the beginning.
If the proposed recommendations go ahead, the public’s right of access to information in this province will be effectively limited by the interests of any cabinet minister who doesn’t want information released, and by public servants who think the release of information is a burden.
Timelines have been stretched, exemptions broadened and the law softened to suit the interests of members of the public who haven’t the interest or the resources to apply for information under the current act.
Here’s the reasoning for one recommendation that effectively blocks access to any piece of paper touched by a cabinet minister, right down to a Chinese takeout menu.
“Effective government requires that cabinet members speak freely in the cabinet room without fear of stating unpopular positions or making comments that might be considered politically incorrect if made public. Similarly, cabinet documents must be protected to avoid creating the type of ill-informed public or political criticism which could hamper the ability of government to function effectively and efficiently,” the province’s Executive Council said in a submission to the review.
You heard it right: ill-informed public or political criticism, based on at least partial information, is far more dangerous than completely uninformed criticism.
So, to protect the sanctity of the cabinet room, the review suggests a blanket ban be extended on access to cabinet documents to include briefing documents for ministers (always available before, although often heavily censored), and any discussion or communication between cabinet ministers about government policy, or anything that might contain a reference of a discussion about a cabinet discussion.
To put that in context, the provincial government sometimes issues a news release saying the cabinet plans to meet in, say, Corner Brook.
Under the proposed new rules, access to information law would mandatorily ban such a news release from public view because it contains information that refers to the deliberations of cabinet.
But there’s far more to this bad dream.
The commissioner reviewing the act, John Cummings, also suggests broadening Section 20 of the act, to allow ministers to block access to “proposals … analysis, including analysis of policy options and consultations and deliberations” between “ministers, the staff of the ministers and officials.”
Read in the right way, that could apply to any document in a minister’s office. The review commissioner maintains that the new restriction should apply in order to allow for “the proper functioning of government when addressing issues of public policy.”
Apparently, “public policy” is better dealt with in complete privacy. Father Government clearly knows best.
And the comedy goes on.
The commissioner, acting on advice from several government departments — particularly the Department of Business — and what he calls “my own experiences in government” also moved to toughen the rules on what the public is allowed to know about deals between the province and businesses.
Businesses that want deals with the government, or cash from the government, apparently are afraid that the information might be made public — so, the Department of Business recommended a complete ban on any release of information until a deal is completed. If the deal sank, the information would essentially be secret for ever.
The commissioner wouldn’t go that far.
“After all, this is a democratic society and I think business has to accept there will be a certain level of disclosure when dealing with the government,” he wrote.
But those words are hollow, because the changes Cummings suggests should be made mean an ordinary person dealing with the government gets one kind of treatment under the act, while businesses get special status.
Don’t even get me started on the recommendations for the appeals process. There used to be a time limit for a review of complaints when a government department refused to release information.
Now, the review can legally hang in limbo forever, at the discretion of the review office. And, like before, a review of an information request can only recommend the release of documents and the government can simply ignore that recommendation, as it has for years.
Essentially, Cummings has sampled legislation from across the country and defaulted to the strictest of rules in any province’s legislation — he has accepted the concerns of virtually every government complaint made about access law, and carved up any claims about rights to access and government transparency in the process.
Government agencies that want the rules tightened have their concerns cited at length, while concerns about the act being too lax are paraphrased and tossed off in a few lines.
Welcome to the deliberate neutering of an already lame piece of legislation: longer timelines, more delays and broad breadbasket exemptions allowing the government to sidestep any release of information. It’s all about making requests easier to delay and deny.
When the review started in March 2010, I wrote about how Cummings, a Department of Justice insider, had been appointed commissioner instead of an expert in access law or a panel of non-governmental commissioners (as was the case in the last review of the act).
“Will the rules change for the better, or will we see changes that actually continue the current trend of restricting the release of information? …” I wrote at the time.
“When it comes to access laws, governments always like lip service better than real teeth. I hope I’m wrong. I’m betting I’m not.”
The review lived up to my expectations. In spades.
Russell Wangersky is The Telegram’s editorial page editor. He can be reached by email at firstname.lastname@example.org.