Closing the gates on information

Some time this week, a shoe that’s been held in the air for more than a year will drop and the provincial government will introduce changes to the province’s access to information legislation.

The changes will occur as the result of a review of the act that, more than anything else, speaks far more to the government’s concerns about the difficulty of living up to its existing legislation.

The review heard from 10 organizations outside government, and devoted the majority of its time to hearing from government insiders about their complaints and concerns with the act.

The result was predictable.

Probably the most obvious change coming will be in the definition of what constitutes cabinet information — a new, broader definition will mean much more can be kept from the public.

Why? Well, here’s the argument from the executive council office.

“The confidentiality of what is said in the cabinet room and of documents and papers prepared for cabinet discussions is a long-standing principle of the British democratic tradition. Cabinet ministers charged with the responsibility of making government decisions must be free to discuss all aspects of the issues and to express all manner of views in complete confidence. 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 to be 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.”

Most noteworthy about that, of course, is the last sentence. Heaven forbid that public or political criticism hamper the government from doing what it wants.

What’s missing from that lofty concern?

Even one single example of a breached cabinet confidence as a result of the existing act. Nevertheless, the government wants — and the review commissioner agrees — that the act should be tightened up to prevent a leak that has never happened. Charming.

But that’s only one of the gates that are being closed.

Another is a failure to deal with a loophole that lets the government simply deem a document to be legal advice and block access to the information commissioner, who might want to look at the documents in the process of a review and see if the government is telling the truth about the advice, or simply hiding it, using a convenient exemption.

A judge hearing a question of whether the information commissioner should be allowed to view the material saw it like this: “This is indeed a conundrum and raises the question, does the commissioner simply accept the opinion of the head of a public body that the information being requested does not fall under the authority of the act. If that were the case, the argument could be made that it could be seen to erode the confidence of the public in the act by an appearance or perception that the process is not independent, transparent or accountable.”

Nevertheless, the recommendation from the review is that the access commission should take every concern back to the expensive and time-consuming route of getting a Supreme Court judgment on the material.

What’s it based on?

Well, the commissioner’s own view: “I am of the view that disputes relating to whether records are judicial records or records related to a prosecution … should be taken before the Supreme Court, Trial Division for determination of the issue.”

Likewise, the commissioner cited his own experience as a senior civil servant as a rationale for broadening the exemptions for companies doing business for government: a senior civil servant who already has problems with the act being too broad seems to be an interesting choice to review the rules.

In the end, what can we expect?

Longer timeframes for the release of information, broader exemptions and an act that better serves the government than the current one does.

It’s likely that the government will simply put forward the legislation already recommended by the review, and argue that its hands are essentially tied, at the same time laughing all the way to the information bank.

Transparent about its intentions and accountable to none.

Russell Wangersky is The Telegram’s

editorial page editor. Email: rwanger@thetelegram.com.