I started submitting freedom of information requests to the government of Newfoundland and Labrador in the fall of 1986 — to put that into clear perspective, almost 26 years ago now. Then, I worked at The Sunday Express, and the requests were under the old Freedom of Information Act. They ran a whole gamut of topics: the travel expenses of cabinet ministers, why the premier sometimes rented limousines in New York to leave them at the curb for hour after expensive hour, why wilderness lands had been signed over to interesting folks for a dollar or two, ready for cabin construction.
I did still more freedom of information requests at the CBC, and I’ve been doing them — less in recent years — for 15 years at The Telegram. And in the process, I’m more than a little jaded about access to information legislation. I’ve come to see that the law is like a fence. You fence things out, but you also fence things in. When you make a rule about what you’re allowed to see, you also rule on what can’t be seen.
That’s especially true when decisions are functionally impossible to appeal: when, as is the case now, the access commissioner can only recommend a government department should release information, and when a court challenge costs tens upon tens of thousands of dollars even to start.
It’s been that way a long time.
For those 26 years, successive Newfoundland governments have followed the same pattern: in opposition, they loved the act and wanted it to be stronger, and then, in government, they were embarrassed by its revelations and wanted to find ways to either slow the number of requests or ways to block them entirely.
In 1986 or 1987, I was in the middle of a sequence of requests into the often-fascinating travels of members of Brian Peckford’s cabinet when I got a letter saying that, from now on, the government would be charging for freedom of information requests. It was a power they had under the legislation, but one that was only invoked when the number of requests began to ramp up. Too many requests: time to throttle that puppy back.
Even then, there was much tootling about the necessity for protecting the right of cabinet secrecy. It’s the same claim we’re hearing today, as the Dunderdale government significantly broadens what constitutes a cabinet secret. But as noble as the concept might sound, that protection can be abused as well. And easily, at that.
I remember asking the Peckford government for details on a particularly messy contamination situation they had agreed to clean up: I knew a report on the contamination existed and asked for it under the act.
For months, I heard nothing, then I was told it was a cabinet document. And, of course, the sanctity of cabinet secrets had to be protected.
Except I knew it wasn’t actually a cabinet document; it was an internal review for a branch of government.
Cabinet ministers actually used to tease me about the fact I couldn’t get that report. It was some kind of in-house joke. I didn’t understand why, until a minister I won’t name took pity on me, took me aside (I was then just a 20-something reporter) and told me what had actually happened.
I was told that, after my request was filed, a minister had brought the report I was looking for into a cabinet meeting, slapped it down on the table and then popped it back into his briefcase, telling other cabinet ministers that he wouldn’t have to release it to me because “now, it’s a cabinet document.”
It wasn’t the only piece of news I picked up about the curious methods of dealing with access to information over the years. My favourite was a story told to me by a lawyer with a small period of time in government.
He said that government ministers would regularly submit access to information requests to legal counsel, who would draw up advice, both pro and con: the reasons why a minister could withhold a document under the act and a matching set of reasons why that same minister could choose to release it. The ministers almost always chose to withhold the information.
Why? It’s simple, really.
Cabinet ministers, whether they admit it or not, are in a conflict of interest when it comes to access to information.
By and large, it’s not in their personal political interest to allow the release of potentially embarrassing information. For access to truly work, documents have to be reviewed by officials outside the political ambit — and there isn’t a politician alive willing to give someone else full control over their documents.
Now, as then, no one will out-and-out say that they plan to abuse the act, and maybe they don’t actually intend abuse it.
I do know they have pushed, and will push, things to the absolute limit, blocking and removing as much information as is possible when the going gets tough.
And that will happen with the new legislation, too: it sets new, stricter boundaries with broader reasons to block the release of documents. The government has said its intention is not to use the legislation improperly: to that, I say good luck. I’m not holding my breath that cabinet members will set their own interests aside.
Dunderdale cabinet ministers, like every cabinet I’ve ever dealt with, will, when tested, push those exemptions and restrictions to the very limit — and probably beyond, knowing all the while how expensive it is to truly catch abuse in progress.
How do I know that?
I’ve been at this a long time.
The Peckford cabinet did it.
The Tom Rideout cabinet did it (briefly).
The Clyde Wells cabinet did it.
The Brian Tobin cabinet did it.
The Beaton Tulk cabinet did it.
The Roger Grimes cabinet did it.
The Danny Williams cabinet did it.
Fool me once, shame on you.
Let’s just say there’s no way I’d let myself be fooled an eighth time.
Russell Wangersky is The Telegram’s
editorial page editor.