Sorry, we can't tell you that

Here’s a little object lesson about how the world of access to information has changed in Newfoundland.

Years ago, then-opposition leader Danny Williams almost burst a blood vessel about the fact that the final deal between the province and Inco for the development of the Voisey’s Bay project would not be part of the debate on the project in the House of Assembly.

This, from Hansard in 2008, is just one example: “Isn’t it true, premier, that the people in this House, and that the people of this province, want to have this matter debated, even some members of your caucus. Some members of your own caucus do not even know what the deal is, just like we do not know what the deal is. We have no idea what the deal is. Isn’t it true that some of the members want to debate it? Wouldn’t it be proper, Mr. Premier? What is wrong with a full and open discussion in this House, by an open and accountable government like you say you have?”

Eventually the deal was signed, and, afterwards, under the Liberals, all of it was posted on the Internet. You can see it here: http://www.

nr.gov.nl.ca/nr/royalties/legal.pdf and read every single word of it, if you like.

You can also fast-forward to 2009, when the Williams government announced it had made things better for everybody under the sun. You can see that deal, called the “Fourth amendment to Voisey’s Bay Development Agreement” here: http://www.nr.gov.nl.ca

/nr/royalties/amendment_4_redacted.pdf

There is no sign of the first, second or third amendments, or any clear information about what those changes may have contained.

One difference you notice immediately about version four?

Large portions of the amendments to the deal have been redacted — in other words, they’ve been cut out of the deal because they are “commercially sensitive,” meaning we’re not allowed to know what the company and the provincial government have promised each other.

Interestingly, the fourth amendment includes a clause that says construction of the project must be completed by Feb. 28, 2013 — a target it’s unlikely to meet — or there will be penalties. But more on that in a minute.

Fast-forward to last week, when The Telegram asked for the latest amended deal between the parties.

The new mantra?

We can’t see even a redacted version of it — the whole deal is now apparently commercially sensitive. It’s not clear what might have changed.

Since 2009, has there been one revision? Two? Six? And what might they contain?

The province, in earlier deals, committed to guaranteeing electrical power for the project, and supplying it at the province’s prevailing industrial rate. Has that changed? Who knows?

Perhaps the most likely change is a softening of the project’s completion date guarantees.

The Feb. 28, 2013 date may now be substantially different — but we’re not allowed to know that anymore, and we’re not allowed to know what the government might have gotten in exchange for slacking off on the schedule. Are there tradeoffs? Benefits? Or just a gently moved date?

We may never know.

Why? Because, under the province’s access law, with something as sensitive as cabinet documents, there’s a sunset clause in the legislation that lets them be released only after 15 years.

Documents that the province has decided are commercially sensitive?

Well, there’s no obvious sunset for half a century — if the documents still happen to be in the control of the government five decades from now, they can be released. That’s 50 years after the fact.

The rules are even more strict for commercially sensitive documents within Nalcor.

Now, Premier Kathy Dunderdale said as recently as Wednesday that there are no Nalcor secrets, at least as far as Muskrat Falls is concerned: “Already, we have released thousands of pages of information, including the analysis of independent professionals with unassailable expertise in the energy industry.

“Never before in the history of our province has a project undergone such scrutiny. Never before has so much detailed information been provided. Scrutiny is a good thing. It is the right thing. This project will stand on its merits or not at all.  We will continue to make information readily accessible so that the people of Newfoundland and Labrador will have the opportunity to engage in the discussion.”

Laudable words.

But it’s interesting that when it comes to commercially sensitive information about Muskrat Falls, the decision isn’t in the premier’s hands. The head of Nalcor is responsible for that decision, and if his decision is appealed to the province’s access commissioner, he has the option to dictate to the commissioner that Nalcor’s view is the right one.

And, while thousands of pages have been released, a significant amount of information hasn’t been. Sixty-seven of the company’s exhibits during the PUB examination of the project had portions of their contents edited out, and 15 exhibits the PUB looked at were listed by Nalcor as confidential documents — including the study that oil price forecasts were based on, a study that estimated the “firm generation potential of the Muskrat Falls development” and the Gate 2 capital cost estimates for both the Muskrat Falls generating facility and the island link power line project.

One thing’s for sure.

What governments feel their constituents have a right to know seems to ebb and flow.

Want a fun fact?

When the UN General Assembly held its first general session in 1946, it declared that “freedom of information is a fundamental human right.”

Russell Wangersky is The Telegram’s editorial page editor. He can be reached by email at rwanger@thetelegram.com.