Door slams shut on access

Russell
Russell Wangersky
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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.

 

Cabinet secrets

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.

Appeals delayed

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 rwanger@thetelegram.com.

Organizations: Executive Council, Department of Business, Department of Justice

Geographic location: Corner Brook

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Comments

Comments

Recent comments

  • Jacob
    January 31, 2011 - 17:56

    Cummings is a coward. It doesn't get any worse than that.

  • S
    January 30, 2011 - 12:58

    Sending out a former senior bureaucrat (Deputy Minister) from one of the most secretive departments of government (Justice) to do a review of access and secrecy provisions is like consulting the leader of the local fox clan on your henhouse security upgrades. The fix was in from the beginning. There should be a wider commission, including members of the public nominated widely, to review this stuff.

    • Joseph Dunne
      February 01, 2011 - 10:39

      I agree there should be more openness. I feel that there has to be members from the general public real members from the general public not some former political big wigs, deputy ministers, political back room buddies or previous members of the court et al. Honestly, it is getting worse. On the other hand they say sometimes it has to get worse before it gets better. I wonder who is looking at the spending habits of the MHA's now that we have had a bunch of them charged with misuse of public funds. Is there any transparency there now?

  • Barbara Colbourne
    January 30, 2011 - 10:02

    I have had direct experience with the access or non-access to information, as it turned out, in the past two years. Redaction, is that a word, long black strips wiping out pertinent, needed information rendered the document sent to me virtually useless. My case was solid, the Cabinet and Bureaucrats knew it but they threw up a brick wall stopping my committee and myself in our tracks. This is getting scarier. Our Province is in danger and I hope the public finally wakes up and realizes what's going on.

  • William Daniels
    January 29, 2011 - 15:15

    Things are likely not to get better with staffers such as Elizabeth Matthews still employed.

  • BE OPEN AND TRANSPARENT
    January 29, 2011 - 12:44

    The door has been slammed on access to INFORMATION in the province of Newfoundland and Labrador for 61 years Mr. Wangersky. Otherwise how could all of our great natural resources have been exported out of herewith very few Newfoundlanders and Labradorians having any knowledge of what was transpiring? Other parts of Canada and the World have created vibrant economies from processing, smelting and refining; and the outright selling of such NL natural resources as Fish, Iron Ore, Nickel Ore, Hydroelectric Energy and Oil, while the province of Newfoundland and Labrador languished with the highest Unemployment Statistics in the country, thus giving it the most anaemic economy in Canada, even while having 'HAVE' status. Now Mr. Wangersky that is a story for you to investigate. Ex-politicians of the province of Newfoundland and Labrador have arranged our resources in such a manner, in co-operation with the Lobbyists of the other provinces who constantly have their ears on behalf of the Industries they represent, so that the only ones who have prospered from the GREAT resource base of the province of NL are the ex-politicians and the Corporations who wooed them while they were in power. The time is long overdue Mr. Wangersky for The Telegram to investigate the whole picture and not just one little aspect of it. I think the time has come for Newfoundlanders and Labradorians to rise up in a peaceful manner to bring this matter to the attention of the World, no different than what Tunisia, Yemen and Egypt of the Middle East are doing at the moment. It is a shocking state of affairs that there are so few jobs present in the province of Newfoundland and Labrador given we are a 'HAVE' status province with so many great natural resources, so few people and such a great, strategic geographic location. The time is long overdue for a PEACEFUL CHANGE. And, yes Mr. Wangersky, the time is also long overdue for the Newspaper, which you are a part of to be writing more meaningful and indept articles so that Newfoundlanders and Labradorians understand what has gone on in the political scene in this province, especially as it pertains to their natural resource base. THE NEWFOUNDLAND AND LABRADOR ELECTORATE HAS BEEN COMPLACENT ONLY FOR ONE REASON, THEY HAVE NOT BEEN GIVEN THE INFORMATION AS TO WHAT TRANSPIRED IN THIS PROVINCE. THEY WERE KEPT IN THE DARK BY ALL THREE POLITICAL PARTIES!

  • Ursula Dowler
    January 29, 2011 - 12:24

    "This is another sad legacy of the Williams Government", how very right you are Geoff . But then again , didn't the author of this article state publicly that he voted for Williams and would do so again . We have to be careful what we vote (wish) for !

  • Don
    January 29, 2011 - 12:21

    Russell Wangersky has hit the nail on the head. Former Premier Williams promised a more open, transparent and accountable Government. That never happened during his time in office and will not happen under Premier Dunderdale. Why the great need to withhold information held inside the Government of Newfoundland and Labrador? It appears that the reason is because there is a lot of corruption and unethical activity going on. In the past, the Government of Newfoundland refused the Auditor General access to its inner workings. When access was finally obtained, what happened? Out popped the MHA spending scandal! I spoke to a friend of mine who is investigating a situation where some lobbyists gained access to the provincial PC Party and convinced them to create a policy which was adopted by the Government. My friend tells me that he cannot access the information which was created inside the PC Party because the Party is not subject to Access to Information laws. That is very convenient cover for the Government and the lobbyists. So, if you are a lobbyist or political crony and you want a policy implemented by Government for your benefit, the trick is, don't discuss it inside Government, go to the Government political party and discuss it there in secret. Have the political party recommend the policy to the Government which will implement it. None or very few of the documents involved are accessible. My friend told me that he knew the Government was cracking down on public access as soon as the public was required to sign in at Confederation Building when they visited the offices there looking for information. Big Brother knew when he came in and when he went out and usually where he went. He wondered why bureaucrats would no longer talk to him inside Confederation Building and one bureaucrat told him that his every move inside the Building was now subject to Government monitoring. In his investigation files my friend uses the abbreviation GNL for Government of Newfoundland and Labrador. He tells me he will now change the abbreviation to KGB which was abbreviation for the infamous secret service of the former Soviet Union which had complete control over information and the way it was collected and stored in complete secrecy by Government in the USSR. It is obvious that the Access to Information laws in Newfoundland and Labrador are a joke. Major changes in the law and the technology required to permit the rapid dissemination of large amounts of information should be enacted and soon. I suspect that the exemptions to access are designed to cover up questionable Government, Business and Not for Profit sector relationships, unethical and criminal activity. The Government must be in favor of complete transparency. Anyone who approaches the Government with a plan for development or an application for public money should be told that every shred of information they provide to any Government department or personnel will be subject to public access and scrutiny in an unedited and un-redacted form. If that were the case, a lot of very questionable activity would quickly be uncovered or would cease to happen. Giving politicians and bureaucrats protection from meaningful media and public scrutiny is a very bad idea! Unless the information being requested reveals a serious national security secret which can be justified for being kept secret, all other information held on file inside Government should be accessible for scrutiny within a very reasonable time and at very reasonable cost. The time for more and not less Government transparency has come, right, Comrade?

  • Geoff Meeker
    January 29, 2011 - 10:47

    This is another sad legacy of the Williams Government, since the deterioration in public accountability - and the appointment of Cummings - happened under his watch. In my view, this clampdown on information (including the closed books on Nalcor and Hebron) is a broken promise. Yes, Danny Williams broke a critical promise: to bring a more open and accountable style of government. He delivered the exact opposite. Most insulting is the stated view of Cummings, that open information will create "ill-informed public or political criticism." Is he saying that releasing more information makes us less informed? Well, since that's impossible, I think he means citizens of this province are too stupid to understand, and will go off half-cocked. I think these proposed changes are a deal-breaker for any government - you can't say, "Oh, but they did good work on other stuff." Open and accountable government is not negotiable. We must have it. If the citizens allow these changes to proceed, well, maybe Cummings is right. Maybe we ARE stupid.